Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales

1. [1]

   BELL CJ: I agree with the orders proposed by Leeming JA and his Honour’s reasons. I also associate myself with the observations of the President as to the erudition and expedition of those reasons.

2. [2]

   WARD P: I am indebted to Leeming JA for the comprehensive analysis of the issues in this matter. His Honour has referred to the co-operation of the parties to achieve a highly expedited hearing. Those are not the only ones to be commended for expedition in the resolution of this complex matter. Having considered carefully the history and issues exposed in the parties’ submissions and Leeming JA’s analysis, I agree with Leeming JA both that a charitable trust was created in respect of the Roman Catholic portion of Rookwood Cemetery and that it remains in existence today. From the end of February 2024, the proceeds held by the trustees will continue to be held on that charitable trust. I agree with the conclusion reached by his Honour that the purpose of the charitable trust is for the use of the Catholic Cemetery as a burial ground for burying the dead of the Roman Catholic denomination, as the Attorney General has contended. I agree with the declarations that Leeming JA has proposed.

3. [3]

   LEEMING JA: These proceedings were commenced by summons filed on 10 November 2023, with the parties cooperating to achieve a highly expedited hearing. The summons was referred from the Equity Division to this Court, in light of the contention advanced by all parties that Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW [2022] NSWSC 1763 was wrongly decided. I acknowledge at the outset Parker J’s learned and illuminating judgment, which has considerably assisted my understanding of the history and issues.

4. [4]

   The summons raises two issues. The first and principal issue is whether land set apart for the use as a Catholic burial ground at Rookwood Cemetery is held on charitable trust. The significance of the question is that legislation which comes into force on 29 February 2024 will extinguish the charitable trust at least insofar as concerns the land at Rookwood. However, if, as both the plaintiffs and the Attorney contend, the accumulated proceeds of the use of the land are also held on charitable trust, they will continue, so it is said, to be available to further the charitable purpose. Those proceeds are substantial. The first plaintiff’s financial report for the year ended 30 June 2023 discloses that it held “Other Financial Assets” of $160,408,993 comprising bills and term deposits and managed funds, noting:

5. [5]

   On the other hand, if the proceeds are held on statutory trust consistently with the reasoning in Parker J’s judgment concerning the Anglican portion of Rookwood Cemetery, then on 29 February 2024 they will fall to be administered in accordance with the Crown Land Management Act 2016 (NSW).

6. [6]

   The second and secondary issue only arises if there is a charitable trust. It is whether the terms of that trust are confined to the burial of the dead of Roman Catholic denomination (as the Attorney contends), or whether they extend to use of land by the Roman Catholic denomination for burying the dead of any denomination (as the plaintiffs contend). Thus the Attorney says that where not all members of the same family are Catholics, the terms of the trust preclude non-Catholic members of the family from being interred in the Catholic portion of the cemetery, whereas the plaintiffs say that whether or not that is to occur is a matter for the trustee. (The legislation, proclamations and declarations used “Catholic” and “Roman Catholic” interchangeably, and in what follows I shall mostly refer to “Catholic”.)

7. [7]

   It will be seen that on the view I take, the answer to the first issue turns principally on a point not finally determined by Parker J, namely, whether the Necropolis Act 1867 (NSW) and proclamations made pursuant to it created a charitable trust. I have concluded that they did. I respectfully depart from his Honour’s reasoning, and hold that none of (a) the subjection of the land to the Crown Lands Consolidation Act 1913 (NSW) in 1988, (b) the enactment of the Crown Lands Act 1989 (NSW), (c) the repeal of the Necropolis Act 1901 (NSW) by amendments in 2004 and 2009, and (d) the enactment of the Cemeteries and Crematoria Act 2013 (NSW) brought the original charitable trust to an end. Finally, I have concluded that the effect of the transitional provisions accompanying the enactment of the Crown Land Management Act 2016 will be to extinguish the trust insofar as it applies to the land at Rookwood, but not to affect the “Other Financial Assets” which will remain held on charitable trust. Those conclusions substantially accord with the position jointly advanced by the parties, and they are reached in part on the basis of a consideration of material which was not put forward to Parker J.

8. [8]

   On the second issue, I have concluded that the charitable purpose was unchanged by the Necropolis Act 1901, despite that statute’s different wording. That conclusion accords with the position advanced by the Attorney, and is contrary to the submissions advanced by the plaintiffs. However, as Ward P observed during the hearing, it may be open to apply to the Court to alter the charitable purpose. Nothing in these reasons should be taken as expressing a view as to the prospects of any such application.

9. [9]

   The result is that declaratory relief in the form proposed by the Attorney and formulated at [258] should issue.

10. [10]

    These reasons first deal with preliminary matters concerning the parties and the availability of relief. There follows an account of the complex legislative history. After summarising the reasoning of Parker J, I turn to the parties’ submissions and the analysis answering each of the questions identified above.

Parties

1. [11]

   The nature of each plaintiff is a little unusual. Another unusual feature is the absence of any contradictor on the main issue.

2. [12]

   The second plaintiff, Catholic Cemeteries Board (CCB), was canonically established as a “public juridic person” on 23 October 1996. That signifies little for present purposes; “[r]ules of ecclesiastical law do not translate automatically into contractual, trust or other secular rules”: Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 at [42]. But that does not prevent statute from taking a canonically constituted body and then creating rights and liabilities or conferring status by reference to that body, as was said in a very different context in Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 at [230]. Section 4 read with Sch 2 of the Roman Catholic Church Communities’ Lands Act 1942 (NSW) constitutes various canonical bodies as bodies corporate that are capable of acquiring, holding and disposing property. Section 2(2) authorises the Governor by proclamation to add to the list of bodies in that Schedule, and pursuant to that power a proclamation made on 8 January 1997 (published on p 45 of the Government Gazette of 10 January 1997) inserted CCB into Sch 2. The effect of doing so was to create a new legal person recognised by secular law.

3. [13]

   By notification published in the Gazette on 24 April 1997, CCB was appointed pursuant to s 95 of the Crown Lands Act 1989 to manage the affairs of the “Catholic Cemetery Trust, Necropolis”. The latter was a “reserve trust”, a concept to which I shall return. The gazettal identified the reserve of which the reserve trust was the trustee as “The Catholic portions of Rookwood Necropolis dedicated 7 April 1868 and 2 December 1887 as cemetery and extension thereto”.

4. [14]

   “Catholic Cemetery Trust, Necropolis” had been created by the transitional provisions in the Crown Lands Act 1989, because when that Act commenced, there had been a corporate trustee holding office as trustee of a “reserve”, namely, “The Catholic portions of the Rookwood Necropolis, dedicated 7 April 1868 and 2 December 1887, as cemetery and extension thereto”. For most of the previous 120 years, the trustees of that land had been natural persons – the successors of the men purportedly appointed as trustees in 1867 and re-appointed in 1868, to which I shall come. However, a declaration dated 31 March 1988 declared the trustees of the Catholic Cemetery and their successors in office to be a corporation, named “Catholic Cemetery Trust, Necropolis”, pursuant to s 37Q of the Crown Lands Consolidation Act 1913. That had the consequence of engaging cl 4(1) and (2) of Sch 8 of the Crown Lands Act 1989, which provided:

5. [15]

   Finally, by notification published in the Gazette on 15 May 2009, “Catholic Cemetery Trust, Necropolis” was dissolved pursuant to s 92(3) of the Crown Lands Act 1989, and a new reserve trust, the first plaintiff Catholic Metropolitan Cemeteries Trust (CMCT), was constituted under that name pursuant to s 92(2) and appointed trustee of the same land that “Catholic Cemetery Trust, Necropolis” had been trustee. The same gazettal appointed CCB to manage the affairs of CMCT.

6. [16]

   Thus CMCT and CCB are bodies corporate, created by executive action pursuant to New South Wales statutes: one pursuant to a power to constitute the trustees of a “reserve” as a body corporate and which was later deemed to be a “reserve trust”, the other by a statute creating bodies corporate to hold property associated with the Roman Catholic Church.

7. [17]

   It is best to be clear at the outset about which “trusts” are, and which are not, legal persons.

8. [18]

   Two things are fundamental. First, a trust as recognised in equity is not a legal person, but a “reserve trust”, constituted under the provisions of the Crown Lands Act 1989, including (by statutory deeming) the first plaintiff “Catholic Metropolitan Cemeteries Trust”, is a legal person. Secondly, the central question in this litigation as framed by the parties is whether CMCT is the trustee of a trust as recognised by equity, or alternatively the trustee of a “statutory trust”.

9. [19]

   In equity, a trust is a relationship, not a legal entity. In Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20 at [24] Kiefel CJ, Keane and Edelman JJ said uncontroversially and axiomatically that “the trust is not a separate entity”; see also ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402 at [15]-[18]. Both those decisions address the concept of a “trust creditor”, a label which illustrates one way in which legal language can mislead. That is because the creditor is not owed anything by “the trust” and there is no such legal person that the creditor may sue. Instead, the creditor must sue the trustee. The creditor may, but will not necessarily, be entitled to execute a judgment against trust assets. Thus, a “trust balance sheet” is in fact a presentation of the assets and liabilities of a trustee, namely (speaking generally), those assets of the trustee which are held on trust and those liabilities of the trustee in the discharge of which the trustee is entitled to have recourse to assets held on trust.

10. [20]

    A charitable trust exists when a trustee owns property held for a purpose recognised by the law as charitable. Charitable trusts are also known as public trusts, in contradistinction with private trusts which are trusts for beneficiaries or objects (I mention this because critical passages in Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [238] and [240] deploy this terminology).

11. [21]

    On the other hand, by dint of statute, a “reserve trust” and CMCT are legal persons. Both are constituted pursuant to New South Wales statutes as bodies corporate with distinct legal personalities. But that does not make either a “statutory trust” in the sense used in this litigation.

12. [22]

    A “statutory trust” as that term has been used in this litigation is in contradistinction with a trust recognised in equity. Statute may make provision for a “trust”, and yet the result is not a trust recognised in equity. It is easy to see that the “reserve trusts” created pursuant to the Crown Lands Act 1989 are distinct from trusts recognised in equity: a reserve trust is a legal person, while a trust recognised in equity is a relationship. However, it is also possible for statute to make provision for legal relationships which are less dissimilar to trusts recognised in equity. Planning law provides a relatively common example, namely, a “trust” of land for public purposes. If those purposes are not purposes which are regarded as charitable, then it is clear that statute has created a “trust” (that is, a legal relationship) which is not a trust recognised in equity. By way of example, the council car park in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 was regarded as “land subject to a trust for a public purpose” for the purposes of determining its classification under local government legislation, in circumstances where it had mostly been acquired as a condition of the development consent granted to a shopping centre owner. One significant aspect of the reasoning in that appeal was that the High Court concluded that the car park answered the statutory description of “land subject to a trust for a public purpose” expressly on the basis that it was unnecessary to determine whether the use was a charitable purpose (see at [35], [39] and [65]), thereby making it clear that the “trust” in the statute was different from and broader than a charitable trust in equity. I shall return to what the joint judgment said under the heading “‘Trust’ in a non-technical sense” below.

13. [23]

    There is thus exceptionally great scope for confusion in this case, because the body corporate that is a “reserve trust” is by dint of statute the trustee of the “reserve”, and while the “reserve” may by an easy metonymy be land which has been “reserved” under the Crown lands legislation, it may also have been land “dedicated” under the Crown lands legislation thereby giving it a different status. I shall return to the significance of land being “reserved”, “dedicated” and “set apart” (noting that the Catholic portion of the cemetery at Rookwood has had all of those verbs applied to it).

14. [24]

    On the principal issue arising on the summons, there was no contradictor. However, there was a suggestion in the evidence that (contrary to the Attorney’s written submissions) the government did not accept that there was a charitable trust. This was raised at the outset of the hearing, for the Attorney might be joined in proceedings such as this in a number of capacities. The Attorney might represent the interests of the executive government (a recent example is Blue Derby Wild Inc v Forest Practices Authority [2023] TASSC 14 at [19]), or alternatively the Attorney might sue or be sued as responsible for looking after the public interest in charitable trusts. At general law, the Attorney-General is “the proper and ... the only competent party to protect the charitable trusts and to seek to enforce them and to look after the interests of the public in those trusts”: Ku-ring-gai Municipal Council v The Attorney-General (1954) 55 SR (NSW) 65 at 69-70, Bathurst City Council at [39]; and it “has always been recognised as the duty of the law officers of the Crown to intervene for the purpose of protecting charities and affording advice and assistance to the Court in the administration of charitable trusts”: Wallis v Solicitor-General for New Zealand [1903] AC 173 at 182, Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1998] HCA 49 at [28].

15. [25]

    After a short adjournment to confirm his instructions, senior counsel for the Attorney advised that the State “respects the decision [of Parker J] as a decision of this Court, but it doesn’t seek to support its reasoning”. That was an entirely proper stance. It is decidedly wrong to think that the decision of a court has no effect in any other case, although from time to time that may be asserted. Decisions of superior courts have effect beyond the particular litigants, partly because, as an axiomatic aspect of the rule of law, like cases should be treated alike. A great deal of the history of the Anglican portion of Rookwood Cemetery mirrors that of the Roman Catholic portion, and indeed the reason the summons was referred to the Court of Appeal was that a single judge would not lightly depart from Parker J’s reasoning as a matter of judicial comity, as explained by this Court in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [281]-[295], as well as by French J in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 at [52] and Martin CJ in Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38]-[46].

16. [26]

    There is no obstacle to this Court issuing declaratory relief determining the legal status of the trust in the absence of a party contradicting the plaintiffs. It suffices for present purposes to adopt the distinction in Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 at [16], drawing upon what had been suggested by Dawson J in Oil Basins Ltd v Commonwealth (1993) 178 CLR 643 at 649; [1993] HCA 60, by French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd) [2004] FCA 1390; 211 ALR 231 at [47] and by Lockhart J in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 414, to the effect that the requirement of a contradictor is satisfied if the party had a true interest in the plaintiff’s claim even if the party did not oppose the relief claimed. This has been repeatedly followed in this Court at first instance, including In the matter of Idylic Solutions Pty Ltd – Australian Securities and Investments Commission v Hobbs [2013] NSWSC 106; 93 ACSR 421 at [31] (Ward JA); In the matter of Beechworth Land Estates Pty Ltd (admin apptd) [2017] NSWSC 1447 at [25] (Gleeson JA); In the matter of Pharmacy Depot Hurstville Pty Ltd (in prov liq) [2018] NSWSC 961 at [20]-[23] (Gleeson JA); Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 at [15]-[18] (Bell P); Johnson v Johnson [2022] NSWSC 44 at [44]-[46] (Ward CJ in Eq); Transport Workers’ Union of New South Wales v Toll Transport Pty Ltd [2023] NSWSC 16 at [32] (Mitchelmore J), and was recently endorsed by Edelman and Steward JJ in Unions NSW v New South Wales [2023] HCA 4; 97 ALJR 150 at [63] and [90]. It is also consistent with what occurred in Fielding v Houison (1908) 7 CLR 393; [1908] HCA 81, which also concerned the entitlement to land endowed to benefit a church, and where the Attorney-General’s non-opposition on one of the main points did not stand in the way of declaratory relief. It is unnecessary to take this any further for present purposes for, although the Attorney agreed with the continuing existence of a charitable trust over the “Other Financial Assets”, the State had an evident interest in whether or not those assets were held for a charitable purpose.

17. [27]

    The existence of power to grant declaratory relief is distinct from the exercise of discretion to do so. Despite the breadth of the discretion (as is clear from Allsop CJ’s account in National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627 at [112]ff) it is not uncommon for litigants to seek declarations which lack utility, for example because they are divorced from a concrete dispute (Commonwealth v BIS Cleanaway Ltd [2008] NSWCA 170), because they are merely prefatory to an order for damages (OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120 at [243]), or because they merely restate findings made against the defendant in a private law claim (Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (No 2) [2017] FCAFC 99 at [3]). Generally, where “the Court’s declaration will produce no foreseeable consequences for the parties”, declaratory relief should be refused: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; [1992] HCA 10. It is unnecessary to address the principles bearing upon the grant of declaratory relief because the present is a clear case. On the view I take it is necessary to determine the live dispute between the parties as to the terms of the charitable trust, which has important consequences for whether funds may be used for the purpose of interdenominational burials.

The statutes affecting the Catholic portion of Rookwood Cemetery

1. [28]

   The starting point is the lengthy history of the land and the statutes affecting it. By way of overview, some 200 acres at “Haslem’s Creek” (now known as Rookwood) was granted in the 1830s to private ownership but was reacquired by “Her Most Gracious Majesty Queen Victoria” by deed executed and registered in August and September 1862. The purchase price was £2,000. The Necropolis Act 1867 authorised the Governor to dedicate the land to be used as a burial ground, and to set apart portions of it for various denominations. After a false start in 1866 and 1867, those steps were taken in 1868. A further 577 acres of land reacquired by the Crown were added in 1887, with the dedication occurring pursuant to the Crown Lands Act 1884 (NSW), and the additional land being vested in the various trustees pursuant to the Necropolis (Additional Areas) Act 1893 (NSW). The 1867 statute was replaced by the Necropolis Act 1901, a consolidating statute. Being dedicated for use as a burial ground, the land ceased to be Crown land, but was deemed to be subject to the operation of the Crown Lands Consolidation Act 1913 by amendments taking effect in 1988, with the result that upon the commencement of the Crown Lands Act 1989, the land was subject to that statute. I have explained above how the power to constitute the trustees as a body corporate was used to create CMCT’s predecessor in title, and how when the Crown Lands Act 1989 commenced there came into existence a reserve trust. Amendments in 2004 and 2009 together repealed the entirety of the Necropolis Act 1901 and, more recently, a new regulatory regime for cemeteries and crematoria was established by the Cemeteries and Crematoria Act 2013. Finally, the Crown Land Management Act 2016 now applies to the land, although the transitional provisions of that statute have still not fully taken effect.

2. [29]

   The following overview taken from paragraph 8 of the plaintiffs’ submissions may assist in identifying the significance of that history:

3. [30]

   The plaintiffs accepted that, by reason of the transitional provisions of the Crown Land Management Act 2016, any trust over the Catholic portion of land at Rookwood Cemetery will be abolished as at 29 February 2024. However, they maintained that, to the extent that the proceeds had been derived from the use of the Catholic portion of land, those proceeds were held by CMCT on the same trust as CMCT holds the land, which trust will not be abolished by the transitional provisions in the Crown Land Management Act 2016. Instead, on 29 February 2024, the plaintiffs submitted that the proceeds will pass to CCB and will be held subject to the same trusts as CMCT held them.

4. [31]

   It will be seen that step (c) above, which concerns the effect of the Necropolis Act 1901, divided the parties as to whether it effected a change of the charitable purpose. It will also be seen that both the plaintiffs and the Attorney submitted that Parker J had erred in respect of the effect of the statutes enacted in 2004, 2009 and 2013 described in steps (f), (g) and (h).

5. [32]

   The Bill which, as will be seen, passed through the New South Wales Parliament in November and December 1867 as the “Necropolis Regulation Bill” resulted in a statute (31 Vic No 14) which was given the short title (by s 25) of “Necropolis Act 1867”. It recited that “certain land consisting of two hundred acres or thereabouts at Haslem’s Creek has been purchased and become vested in Her Majesty the Queen and has by notification in the Gazette been designated the Necropolis”.

6. [33]

   The materials supplied by the parties illuminated that recital. The Gazette of 28 September 1860 contained an advertisement inviting “Persons who may be willing to dispose of not less than 100 acres of land which may be suitable for a General Cemetery on or near the Great Southern Railway, between Sydney and Parramatta, are requested to communicate in writing with this Department [of Lands] …”. The 1862 deed conveying 200 acres for £2,000 pounds from Messrs Cohen and Benjamin to the Queen was in evidence, as was the fact of its registration (the conveyance predated the Torrens system introduced by the Real Property Act 1862 (NSW), and was governed by the Registration of Deeds Act 1843 (7 Vic No 16)). Also in evidence were notices published in the Gazette on 17 August 1866 appointing “the following Gentlemen to be Trustees of the several portions of Haslem’s Creek Cemetery, appropriated to the respective Denominations mentioned in connection therewith”, and identifying five Presbyterians, five Wesleyans, six “Independents” and three Jews. A small mystery, raised during the hearing, was the identity of the so-called “Independent” denominations. A notice published on p 5 of the Sydney Morning Herald on 22 January 1867 concerning the formal opening of the “Independent” portion of the cemetery by Congregationalist and Baptists resolves that point. It commenced:

7. [34]

   A further notice published on 25 January 1867 was in the same terms, appointing The Most Reverend Archbishop Polding, The Very Reverend S J A Sheehy and Thomas Cooper Makinson as trustees of the portion set apart for Roman Catholics. Trustees of the “General Cemetery”, which was that part of the Rookwood Cemetery “not specially appropriated to any Religious Denomination”, were appointed by notice published on 29 January 1867. And on 5 February 1867 the Governor on the advice of the Executive Council directed “that the General Cemetery at Haslem’s Creek shall be designated ‘The Necropolis’”.

8. [35]

   The foregoing was recounted in paragraphs 49 and 50 of the Attorney’s written submissions, but those matters give rise to a larger mystery, which as it turns out bears upon the purpose of the Necropolis Act 1867 which is central to this litigation. That Act commenced on 23 December 1867, and the Bill only passed through the Parliament a few days earlier. Why was there repeated activity at the highest levels of the colonial government appointing trustees in 1866 and early 1867, not to mention the formal service opening the “Independent” portion on 21 January 1867, all well before the Necropolis Act 1867 was enacted? And what of the numerically most important denomination, the Church of England? The evidence and materials supplied by the parties, which exceeded 200 pages, did not include the appointment of trustees of the Church of England. Aside from the Attorney noting that “[i]t appears there was ongoing resistance from the Church of England”, the parties’ submissions shed no light on this. Nor did dozens of pages of reports of debates in the Legislative Assembly and Legislative Council, taken from the Sydney Morning Herald, although they did reveal that the Necropolis Regulation Bill was introduced in November 1867. However, although most of that debate took place on 15 November 1867, the report in the Sydney Morning Herald on 28 November 1867 of the debate in the Legislative Council attributed the following to the government’s representative:

9. [36]

   I shall return to what occurred earlier in 1867 prior to the enactment of the statute.

10. [37]

    Section 1 of the Necropolis Act 1867 empowered the Governor, by proclamation published in the Gazette, to “dedicate and set apart” the Haslem’s Creek land for the purpose of the land being “used as a Cemetery”. Section 2 then empowered the Governor to “set apart” a separate portion of the cemetery’s land for each of six specified religious denominations (the Church of England, the Roman Catholic Church, Presbyterians, Methodists, Independent and Jews) for the purpose of the portion so set apart “being used as a Burial Ground for burying the dead of such denomination”. Section 2 also provided for the Governor to appoint a body of individuals as trustees of each portion of the cemetery so set apart. The trustees of each denominational portion were to belong to the denomination in question. A corresponding provision for the “General” portion of the cemetery was made by s 3. This was “to be used as a Burial Ground for burying the dead for whose burial none of the several portions of land set apart as in the said last section may from any cause whatever be applicable”.

11. [38]

    The division between denominational portions and a general portion reflected a series of compromises, explained in Dr Lisa Murray’s doctoral thesis “Cemeteries in nineteenth-century New South Wales: Landscapes of Memory and Identity” (PhD thesis submitted to University of Sydney, August 2001), to which Parker J had regard, and to which I had regard in Carr v Carr [2022] NSWSC 166; 21 ASTLR 511. It is an example of the “serious studies and inquiries and historical narratives” to which Dixon J referred in Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196; [1951] HCA 5, and in any event, relevant extracts were tendered.

12. [39]

    Dr Murray explained the failure of the General Cemetery Bill 1845 (an attempt to establish a General Cemetery with no religious distinctions – such that Catholics could be buried next to Protestants) led to the Sydney Necropolis Act 1847 (11 Vic No 11) which contemplated a single body of trustees managing a site with separate areas for various religious denominations. But the plan envisaged by that Act never came to pass. As Dr Murray put it at pp 84-85:

13. [40]

    The explanation was made more pointedly in Dr Murray’s article, “‘Modern innovations?’ Ideal vs reality in colonial cemeteries of nineteenth-century New South Wales” (2003) 8(2) Mortality 129 at 131:

14. [41]

    Returning to the statute, s 4 was described by Parker J at [218] as the “critical provision”. It applied to the groups of trustees appointed pursuant to s 2 as trustees of each of the portions set apart for burying the dead of each denomination, and also to the trustees appointed pursuant to s 3 as trustees of the general portion. Section 4 provided:

15. [42]

    Pausing there, it is plain from the references in s 2 to “burying the dead of such denomination” and in s 4 to “burying the dead as hereinbefore mentioned” that the statute required the denominational cemeteries to be restricted to burial of members of that denomination.

16. [43]

    In light of the significance attributed to the balance of the statute by Parker J, the following provisions should also be mentioned. Section 5 empowered the Governor, by proclamation, to remove and replace any of the trustees. Section 6 provided that the trustees should lay out the portion of land vested in them in an appropriate manner, and undertake any consequential landscaping and enclosures, while s 15 empowered the trustees to build a mortuary church or chapel for funeral rites and ceremonies for the burial of the dead, for which purpose they might borrow moneys, charging borrowing expenses against income received by them. Section 8 gave the trustees power to sell and grant exclusive rights of burial and rights to construct vaults or erect gravestones, while s 9 empowered the trustees to charge fees for interment of bodies and the grant of such burial rights.

17. [44]

    Section 12 authorised the trustees of the denominational portions of the cemetery to appoint a “recognized minister” of the denomination as chaplain to perform the burial services within their portion of the cemetery. The chaplain was to be paid an annual stipend, not to exceed a statutory limit. Alternatively, the trustees might choose not to appoint a chaplain and instead to allow burials to be conducted by visiting ministers of the denomination, who were to be entitled to a fee fixed by the trustees. Any recognised minister of the denomination had the right to attend the cemetery and conduct services, but was not entitled to any fee for doing so unless sanctioned by the trustees.

18. [45]

    Sections 16 and 17 provided that the “business and general management” of the affairs of the cemetery were to be placed in the hands of a secretary and such clerks as might be necessary, to be appointed by the Governor, subject to any regulations made by the trustees. The secretary was to receive all moneys payable under the Act or levied by the various bodies of trustees (but was to keep a separate book of income and expenditure for each trustee body). An abstract of the accounts was to be verified annually by the secretary before being sent to the Minister of Lands and published in the Gazette. For “any matter arising with respect to interments” in any of the separate portions of the cemetery not provided for by the Act or the regulations, the secretary was to have power to act under the directions of the body of trustees in whom that portion was vested. Section 18 empowered the trustees to make rules and regulations “in respect of” the portion of the cemetery vested in them, and to do whatever was necessary for “carrying out the purposes of this Act” and in particular for siting graves and vaults and protecting buildings, monuments etc from destruction or damage.

19. [46]

    Section 14 provided that the fees, charges and other income derived by the trustees were to be applied in the following order: meeting the trustees’ expenses, “maintaining the portion of the cemetery vested in them”, paying stipends to ministers and other officers, and finally “laying out and embellishing the portion of the Cemetery vested in them”.

20. [47]

    Sections 20 to 24 dealt with offences, including fines for anyone committing a nuisance or “wantonly or wilfully” damaging any monument or the like, and provided for summary prosecution before a Justice of the Peace.

21. [48]

    As Parker J observed in his account of the 1867 statute, there was a deal of governmental oversight of the activities of the trustees. In addition to the power to appoint and remove the trustees and the secretary, the approval of the Governor was required for the plans of laying out the land and of building any mortuary chapel, and for the terms of and fees for the selling of rights of burial and erecting gravestones. The general regulation-making power was also subject to the Governor’s approval.

22. [49]

    In the exercise of the power conferred by s 1 of the Necropolis Act 1867, on 7 April 1868 the Governor issued a proclamation in the Gazette to “dedicate and set apart the said land at Haslem’s Creek, for the purpose of the same being used as a Cemetery, under the name and designation of ‘Necropolis’”.

23. [50]

    On the same day, the Governor exercised the power in s 2 to “set apart” parts of the same land for each of the six denominations. Approximately 39 acres were “set apart for the said denomination in the said Act mentioned or referred to as ‘Roman Catholic’”. After giving a metes and bounds description of the land so set apart, the proclamation continued:

24. [51]

    The first three of those men had purportedly been appointed trustees of the same land by the notice gazetted on 25 January 1867 mentioned above. But the latter appointment of a larger body of men as trustees of the same land, this time pursuant to explicit statutory authority, must supersede the earlier appointment.

25. [52]

    Also on the same day, the Governor set apart a separate part of the land for a “General Cemetery” comprising some 58 acres “to be used as a burial-ground for burying the dead, for whose burial no portion or portions of land have, or has been, or shall thereof be, set apart … [by] the second section of the said Act mentioned, might from any cause whatever be applicable”.

26. [53]

    The Necropolis Act Amendment Act 1884 (NSW) amended the 1867 Act mostly in “matters of detail only”, as Parker J described the position at [239], including a clarification of the power to make regulations imposing a fine for their infringement. Neither Parker J nor the parties suggested that there was any change relevant to the current litigation.

27. [54]

    In 1879 the Crown purchased an additional 577 acres as part of a larger purchase of 1,340 acres from Messrs Benjamin, Marks and Cohen. But the Necropolis Act 1867 only applied to the 200 acres of land at Haslem’s Creek which the Crown had acquired for the purpose of a burial ground.

28. [55]

    The land repurchased in 1879 was “Crown lands” within the meaning of s 4 of the Crown Lands Act 1884 (as “lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under this Act or any [previous Crown Lands Acts]”) and subject to the operation of Part V which was headed “Dedications – Reserves – Roads”. Section 101 authorised “temporary reserves from sale” for various purposes concerning town planning, and s 102 provided that lands so reserved should not be sold before the reservation was revoked. Section 103 provided that land might also be temporarily reserved from sale for various other public purposes. Section 104 departed from the language of “temporarily reserved from sale” and empowered the Governor to “reserve or dedicate” Crown Lands for some 16 enumerated purposes and for any other public purpose. One of the enumerated purposes was “interment of the dead”. Section 104 concluded:

29. [56]

    Section 105 conferred a special power to revoke dedications or reservations. Section 106 authorised the appointment of “trustees”, not less than three in number, “to be charged with the care and management of lands already or hereafter dedicated [or] reserved …”. There is nothing in s 104 or s 106 that vests legal title in dedicated Crown land in trustees, and to the contrary, despite being called “trustees”, s 106 provides that they have “care and management” of such land, as opposed to legal ownership. Further, it is far from clear that all of the public purposes in s 104 would be charitable. Some (such as those relating to hospitals) unquestionably are, but the list includes “any purpose of defence”, “town-hall court-house or gaol”, “public market or slaughter-house” and “any other public purpose”, and in Australia it is not sufficient merely to point to a purpose beneficial to the community or of general public utility in order for a trust to be charitable, a point made by Lord Wilberforce in Brisbane City Council v Attorney-General for Queensland [1979] AC 411 at 422 by reference to Incorporated Council of Law Reporting (Q) v Federal Commissioner of Taxation (1971) 125 CLR 659 at 666-667; [1971] HCA 44. While the restriction to purposes within the “spirit and intendment of the Preamble to the Statute of Elizabeth … should be given no narrow or archaic construction”, Bathurst City Council at [34] confirms that the constraint continues. To the extent that the purposes of defence, or a town-hall, or a public market or slaughter-house are outside the so-called “fourth category” of charitable trusts, then “trustees” appointed under s 106 of land permanently dedicated for such purposes cannot be trustees of a charitable trust. There are two clear reasons for this: such “trustees” do not hold legal title to the land, nor is the purpose for which the land is held one that is charitable.

30. [57]

    By proclamation on 2 December 1887 pursuant to s 104 of the Crown Lands Act 1884, some 577 acres of further Crown land was dedicated for the purpose of “Extension to Necropolis”. By a proclamation gazetted on 7 February 1889 which referred to the 2 December 1887 dedication, defined parcels of land were set apart for seven named denominations, including 131 acres and 2 roods which was “set apart exclusively for the burial of the dead of the denomination mentioned or referred to as ‘Roman Catholic’, in addition to the land now held in trust by such denomination for a like purpose at the said Necropolis”. Five trustees were also appointed (with the source of power to do so not being specified). As has been explained, the proclamation did not of itself vest the land in the existing trustees. Thus, although “interment of the dead” is unquestionably a charitable purpose, I find it difficult to see how “trustees” to whom is given pursuant to s 104 the “care and management” of Crown land for that purpose would be regarded as trustees of a trust recognised in equity, because they did not have title to the trust property. It is not necessary to explore the possibility noted by Professor Campbell that the effect was that the Crown was constituted as a trustee of the land for the charitable purpose; cf E Campbell, “Rights of Common in New South Wales: A History” (2007) 11(2) Legal History 243 at 251-252. That is because the Necropolis (Additional Areas) Act 1893 not only provided for the appointment of bodies of trustees for two additional denominations, but also vested a specified portion of the additional land in each of the (now eight) bodies of denominational trustees. The new statute provided that it was to be “read with” the two previous statutes (s 1). Section 3 of the Act (read with Sch B) provided that the 132 acres (which presumably corresponds with the 131 acres 2 roods in the 1889 proclamation) were vested in “the trustees of the … Roman Catholic … Cemeteries appointed under the ‘Necropolis Act 1867’ … and their successors, to be held by them as burying grounds for burying the dead of their respective denominations”. Section 4 provided that the earlier Necropolis legislation applied to the new land vested in the trustees. The Bill was described by the Minister introducing it as “merely a formal measure” and proceeded uncontroversially and rapidly through the chambers: New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 May 1893 at 7426; New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 31 May 1893 at 7793.

31. [58]

    The vesting of title under a separate, bespoke statute may be contrasted with the appointment of “trustees” to land dedicated pursuant to s 104 of the Crown Lands Act 1884. In that way the additional 132 acres were held on the same terms as the original 39 acres. No party submitted, and nothing in Parker J’s reasons suggests, any different result.

32. [59]

    The Necropolis Act 1901 was in fact Act No 20 of 1902 and commenced on 25 January 1902 (and thus it is found in physical and electronic collections of statutes made in 1902), but s 1 states that it may be cited as the “Necropolis Act 1901” and I shall follow that course. By s 2, it repealed earlier legislation including the Necropolis Act 1867 and the Necropolis (Additional Areas) Act 1893. Section 3 deemed trustees (as well as secretaries, managers and other officers) appointed under those Acts to be appointed under the Necropolis Act 1901, and s 4 deemed proclamations and notifications made under those Acts to be made under the 1901 Act. The Act defined “Necropolis” as “the lands which have been heretofore and shall be hereafter dedicated as a cemetery for burying the dead at Haslem's Creek and Rookwood” (s 6).

33. [60]

    The parties were divided as to the effect of s 7, which was relevantly as follows:

34. [61]

    The plaintiffs submitted that, unlike the earlier Acts, s 7 did not identify the purpose for vesting land in the trustees of each denomination as “burying the dead of such denomination”. Instead, it identified each portion of land by the purpose of “a burial ground for the use of such denomination” and continued the vesting of the land for that purpose. This difference in wording gave rise to the second issue in the litigation.

35. [62]

    The counterpart to s 4 of the Necropolis Act 1867 was s 12, which provided:

36. [63]

    I shall return below to the effect of the repeal of the Necropolis Act 1901, and in particular the repeal of s 12.

37. [64]

    It will also be necessary to have regard to s 11:

38. [65]

    Between 1943 and 1985 six adjustments were made to the boundaries of “the Roman Catholic Burial Grounds” pursuant to s 10 of the Necropolis Act 1901. In 1972 pursuant to s 9 of the same statute an additional area of just over an acre was added to the “Roman Catholic Section” (the same proclamation added just over half an acre to the Lutheran section, just over 3 acres to the Jewish section and just over 2 acres to the “Independent” section).

39. [66]

    There were further adjustments in 1994 and 1996, once again pursuant to s 10 of the Necropolis Act 1901, although by this time the land had also become subject to the Crown Lands Act 1989. For example, in 1996 in connection with the reworking of a T-intersection, an additional 770 square metres were added to the “Catholic Cemetery, Necropolis”.

40. [67]

    It was not suggested that any of these adjustments or additions bore upon the issues in this litigation.

41. [68]

    I shall return to the significance of legislation regulating Crown land in construing the effect of the dedication and setting apart of the land at Rookwood. The most important statutes were the Crown Lands Alienation Act 1861 (NSW) (to which Mr Docker had referred when introducing the bill which became the Necropolis Act 1867), the Crown Lands Act 1884, the Crown Lands Consolidation Act 1913, the Crown Lands Act 1989 and the Crown Land Management Act 2016. Each built on its predecessor.

42. [69]

    As has been seen above, the land which became Rookwood Cemetery had been granted to private ownership but was repurchased by the Crown in 1862. It was then “dedicated and set apart” for the purpose of burial grounds, in part pursuant to the Necropolis Act 1867 and in part by a dedication under s 104 of the Crown Lands Act 1884 but then by a further vesting by the Necropolis (Additional Areas) Act 1893. The land thereby ceased to be Crown land, and instead was regulated through the Necropolis Acts of 1867 and 1901.

43. [70]

    However, from 1988, a series of changes were made which had the effect of treating land at Rookwood Necropolis as a reserve subject to the operation of Crown lands legislation. The plaintiffs submitted that none of these changes had the effect of extinguishing any trust over the Catholic portion of land at Rookwood Cemetery.

44. [71]

    The Necropolis (Amendment) Act 1986 (NSW) deemed portions of land within the Necropolis set apart for the use of a particular denomination to have been dedicated for a public purpose under s 24 of the Crown Lands Consolidation Act 1913. Thus, with effect from 1 April 1988:

    1. (1)

       that land was taken to be a “reserve” within the meaning of s 37M of the Crown Lands Consolidation Act 1913, and

    2. (2)

       section 37R charged the trustees of a reserve “with the care, control and management of the reserve”.

45. [72]

    The Necropolis (Amendment) Act 1986 also repealed the provisions of the Necropolis Act 1901 dealing with the appointment and removal of trustees (s 14), the conferral of control and management over the land and the other responsibilities and obligations on the trustees (ss 15-16) and the provisions dealing with the application of income and the making of annual reports to the Minister (ss 18-19). The Act inserted a new s 14 enabling trustees to be appointed “for the land set apart for the use of a particular denomination” in accordance with Pt IIIB of the Crown Lands Consolidation Act 1913.

46. [73]

    On 31 March 1988, by notification published in the Gazette under s 14 of the Necropolis Act 1901 and s 37O of the Crown Lands Consolidation Act 1913 (which appears in Pt IIIB), the Minister appointed five natural persons (Messrs Cox, John d’Apice, Belkovskis, Richard d’Apice and Giles) as trustees of the “Catholic Cemetery” for terms of five years. On the same day, by another notification published in the Gazette under s 37Q of the Crown Lands Consolidation Act 1913 (which also appears in Pt IIIB), the Minister declared the trustees of the “Catholic Cemetery” and their successors in office to be a corporation: “Catholic Cemetery Trust, Necropolis”. Although the new s 14 did not commence until 1 April 1988, pursuant to s 26 of the Interpretation Act 1987 (NSW) the instruments gazetted on 31 March 1988 took effect on 1 April 1988 as if made under the new s 14.

47. [74]

    The Necropolis (Amendment) Act 1986 also inserted Sch 5 into the Necropolis Act 1901, which made a series of important transitional provisions. By cl 1 and cl 2 of that schedule, the assets and liabilities of former trustees were transferred to new trustees appointed under the Crown Lands Consolidation Act 1913, the existing trustees ceased to hold office, but were eligible if otherwise qualified to be re-appointed. The result was that the same land was held by a corporation, constituted under the Crown Lands Consolidation Act 1913, comprising the same five men who had previously been trustees.

48. [75]

    What occurred gives rise to a little difficulty, although it is a difficulty on which nothing turns. It will be recalled that s 4 of the Necropolis Act 1867 and s 3 of the Necropolis (Additional Areas) Act 1893 vested legal title to the Rookwood Necropolis land in the trustees. This is quite different from the appointment of “trustees” of land which has been reserved or dedicated under the Crown lands legislation – for such trustees have the “care and management” of the reserve and typically legal title would remain in the name of the Crown. But there is nothing to suggest that legal title revested.

49. [76]

    As mentioned at the outset of these reasons, the Crown Lands Act 1989 created bodies corporate known as “reserve trusts”, and the transitional provisions had a particular operation to the Catholic portion of the cemetery at Rookwood in light of the creation in 1988 of “Catholic Cemetery Trust, Necropolis”.

50. [77]

    The transitional provisions in Sch 8 of the Crown Lands Act 1989 provided that:

    1. (1)

       dedications or reservations in force under the Crown Lands Consolidation Act 1913 had effect as if made under the Crown Lands Act 1989 and for the same purpose and on the same terms as the original dedication or reservation (cl 1);

    2. (2)

       a “reserve trust” was taken to have been constituted under Pt 5 of the Crown Lands Act 1989 as trustee of a reserve for which a trustee or trustees held office immediately before the commencement of the new Act (cl 4(1)); and

    3. (3)

       if the former trustees had been constituted as a corporation, the corporate name of the reserve trust was the same (cl 4(2)).

51. [78]

    The effect of these changes was that a reserve trust by the name of the “Catholic Cemetery Trust, Necropolis” was constituted under s 92 of the Crown Lands Act 1989 as trustee of the reserves for which the corporation named “Catholic Cemetery Trust, Necropolis” (the corporation created in 1988 pursuant to s 37Q of the Crown Lands Consolidation Act 1913) had formerly held office. The new reserve trust, named “Catholic Cemetery Trust, Necropolis” continued to hold the Catholic portion of land at Rookwood Cemetery subject to the trusts on which the previous trustee (which bore the same name) had held it.

52. [79]

    As noted above, in 1997 CCB was appointed to manage the affairs of the reserve trust “Catholic Cemetery Trust, Necropolis”.

53. [80]

    Although Parker J gave weight to the fact that the Rookwood land had become subject to the Crown lands legislation in 1988, his Honour regarded the coming into force on 15 December 2004 of the Rookwood Necropolis Amendment Act 2004 (NSW) as decisive: if hitherto there had been a trust in equity over the Anglican portion of the Rookwood Cemetery, his Honour held at [276] that it ceased to exist on 15 December 2004. The same reasoning would apply to the Catholic portion of Rookwood Cemetery, and thus it was central to the submissions made in this Court.

54. [81]

    The Rookwood Necropolis Amendment Act 2004 made various amendments to the Necropolis Act 1901. One (by item 2 of Sch 2) was to rename it the “Rookwood Necropolis Act 1901”, but to avoid confusion I shall continue to refer anachronistically to the Necropolis Act 1901. The amendments upon which Parker J relied were described as being “by way of law revision” (see the title to Sch 2), on the basis that (according to the Explanatory Note) a number of provisions had “fallen into disuse”.

55. [82]

    The Rookwood Necropolis Amendment Act 2004 omitted ss 7, 7A, 8 and 9, which dealt with dedication and setting apart of land, and s 12, which required the land vested in trustees to be held on trusts and for the purposes of the Necropolis Act 1901.

56. [83]

    Roughly comparable provision was made for some, but not all, of the omitted provisions. Thus the Rookwood Necropolis Amendment Act 2004 also inserted savings and transitional provisions (Sch 5) into the Necropolis Act 1901. One of these provisions (cl 7) deemed land dedicated or set apart for any purpose under ss 7, 7A or 8 as in force immediately before their repeal by the 2004 Act to be set aside for that purpose under s 6A, and deemed such land to be a reserve within the meaning of Pt 5 of the Crown Lands Act 1989. New s 6A provided, in subs (6), that a reserve trust for land “set apart” under the Necropolis Act 1901 had the functions conferred on it by or under that Act in addition to the functions conferred or imposed on it under the Crown Lands Act 1989. New s 6A also provided, in subs (4), that land “set aside” under s 6A would be taken to be a “reserve” within the meaning of Pt 5 of the Crown Lands Act 1989 and be taken to have been dedicated for a public purpose under s 80 of that Act. (The repeated references to land being “set aside” in subss (1), (2), (3) and (4) of the section, but “set apart” in subs (6) suggests that nothing turns on the change in language.)

57. [84]

    Conspicuous by its absence was any counterpart to s 12.

58. [85]

    On 1 July 2009 the Necropolis Act 1901 was repealed by the Rookwood Necropolis Repeal Act 2009 (NSW). Parker J said that his reasoning to the effect that the 2004 statute caused any trust in equity to cease to exist applied a fortiori following the 2009 Act: at [276]. The plaintiffs and the Attorney disagreed, pointing to the transitional provision cl 54 which was inserted into Sch 8 of the Crown Lands Act 1989 by item 6 of Sch 1 of the 2009 statute. Clause 54 provided:

59. [86]

    I shall return to the possible operation of cl 54(2), which turns on the effect of s 11 of the Necropolis Act 1901. But it is clear that the general intention of cl 54 was to preserve what had occurred in relation to the land at Rookwood pursuant to the Necropolis Act 1901 and, specifically, that the repeal of the Necropolis Act 1901 did not affect at least those vestings which had been effected under s 11.

60. [87]

    The plaintiffs and the Attorney relied on the same submissions made in respect of the 2004 Act to the effect that the more general repeal in 2009 did not affect the charitable trust.

61. [88]

    The Cemeteries and Crematoria Act 2013 established a new regulator “Cemeteries and Crematoria NSW” to regulate the interment industry.

62. [89]

    At [146]-[148] of his reasons Parker J observed that the new statute conferred power upon the Minister to appoint a Crown land manager as a Crown cemetery operator (s 73) and imposed financial reporting obligations including an annual financial report to the regulator (s 99). His Honour also noted that the regulator had power to direct a Crown cemetery operator to prepare a plan of management (s 96) which constrained the operator’s ability to manage the cemetery, as well as to make provision for matters including the conduct of religious and other ceremonies of interment or commemoration, and to impose or manage fees or charges for services (ss 106 and 107).

63. [90]

    With effect from 1 July 2018, the Crown Land Management Act 2016 repealed the Crown Lands Act 1989 by force of Sch 8. Schedule 7 contains transitional provisions. Clause 1 of Sch 7 contains a “Henry VIII” clause authorising regulations which “may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any other Act that amends this Act”, and that power has been regularly used in the more than seven years since the statute was enacted. Pursuant to that power, cl 10A was inserted into Sch 7 by the Crown Land Management Amendment Regulation 2018 (NSW). That amendment was effective either when it was published on 1 June 2018 (ie, before the statute commenced) or else on 1 July 2018 when the new statute commenced.

64. [91]

    Clause 10A defines a “transitional reserve trust” as a “reserve trust the affairs of which were managed by … [a] corporation appointed under section 95 of the Crown Lands Act 1989 immediately before the repeal day”. CMCT is thus a transitional reserve trust.

65. [92]

    Clause 10A(2) thereafter relevantly provides:

66. [93]

    The “old reserve trust provisions” are defined to mean s 92(3)(a) and (b), (4), (6)(c) and (d), (6A) and (6B), ss 95, 96, 97, 97A and 121 and Div 7 of Pt 5 of the Crown Lands Act 1989. The “continuation period” has been repeatedly extended by regulation, but at present it is a period which expires on the “transition day” which, in the case of CMCT is defined to be 29 February 2024.

67. [94]

    Clause 6(1)(b) of Sch 7 provides that “any land in which an estate in fee simple is, or is taken to be, vested in a reserve trust (including land acquired by a reserve trust under section 101 of the Crown Lands Act 1989 or acquired by or transferred to a reserve trust under section 14 of the Cemeteries and Crematoria Act 2013)” to the extent to which it is not Crown land becomes Crown land on and from the repeal day. Clause 17(1) provides that:

68. [95]

    Clause 11(1B), (2) and (2A) of Sch 7 provide:

69. [96]

    As noted above, CMCT is a transitional reserve trust. There is no dispute that the trust of the Catholic portion of the Rookwood land will be abolished on 29 February 2024 pursuant to cl 11(2A), as will CMCT itself pursuant to cl 11(1B). However, as reproduced above, the same clause notes that the clause does not affect the dedication or reservation of any former trust land. That appears to reflect s 1.10 which provides, inter alia, that the vesting of land in the Crown does not operate to “revoke or alter any dedication or reservation of the land”, or “extinguish, revoke or alter any estate, interest, trust or obligation to the extent that it is continued over the land by the provision or declaration under which the land becomes Crown land”: s 1.10(3)(c) and (d), read with s 2.12 which requires that “dedicated” Crown land may only be used for the purposes for which it is dedicated and ancillary purposes and other purposes authorised by statute.

70. [97]

    Clause 11(5) and (5A) of Sch 7 provide:

71. [98]

    The operation of these provisions is quite intricate, but fortunately does not give rise to great difficulty once it is borne in mind that CCB was taken to be appointed as the Crown land manager pursuant to cl 11(5)(a) and CMCT’s assets, rights and liabilities are to be transferred to it pursuant to cl 11(5)(b).

The reasons of Parker J

1. [99]

   In Rookwood General Cemeteries Reserve Land Manager v Attorney-General NSW, Parker J concluded that the “Anglican Cemetery Proceeds” were not the subject of a charitable trust for denominational purposes, but rather fell to be administered pursuant to the terms of the Crown Land Management Act 2016. The Church of England (later Anglican) portion of Rookwood Cemetery was subject to the same legislative history as the Catholic portion, and was acquired in substantially the same way: an original dedication and setting apart in 1868, a substantial accretion in 1889, and relatively minor alterations thereafter, with the land being held by a body of natural person trustees which were constituted as a corporation after the land became subject to the Crown Lands Consolidation Act 1913. The Anglican portion of the land had, no differently from the Catholic portion, generated a substantial surplus of proceeds. In short, except in relation to a reorganisation in 2012 and a minor aspect of the transitional provisions of the Crown Land Management Act 2016 (discussed by his Honour at [295]-[299]), the history is materially identical.

2. [100]

   Thus it was accepted, properly, that if Parker J’s reasoning were correct, then the outcome of this proceeding should be the same, and there would be no charitable trust over the Catholic portion of the Rookwood land or the proceeds of the use of that land. As noted at the outset, for that reason the summons was removed to the Court of Appeal, and in substance although not in form the litigation resembled an appeal from Parker J’s decision.

3. [101]

   After dealing with introductory matters, Parker J addressed the Crown lands legislation and leading decisions extensively, before turning to the legislation applicable to the land at Rookwood at [11]-[149]. Any reader with the fortitude to have progressed this far will appreciate the significance of understanding the essential operation of the regime for dealing with “Crown land”. In particular it is necessary to bear steadily in mind the different meanings of the terms “reserve” and “dedicate”. In order to do so, broader constitutional considerations intrude. That is because a primary meaning of “reserve” was that the land was “reserved from sale”, contrary to a general policy informed by policies associated with Wakefield that surplus Crown land be sold at a minimum price to settlers, and not otherwise dealt with by the Executive, and because one aspiration of the movement for responsible government was the desire for local control over what were known as “the Waste Lands of the Crown”. Land could be reserved from sale on a number of bases, as will have been clear from the summary of Pt 5 of the Crown Lands Act 1884 already given. What matters for present purposes is that Crown land could be reserved temporarily, and it could also be “dedicated” on a permanent basis for a particular purpose. This is summarised in chapter 6 of Andrew Lang’s invaluable work Crown Land in New South Wales (1973, Butterworths) which states at 77-78:

4. [102]

   The work records that according to the 1969-1970 Annual Report of the Department of Lands, some 15,792,772 acres (or about one twelfth of the land area of the State) had been reserved, principally for travelling stock reserves, mining, forests, recreation and parks, and other public purposes: p 77.

5. [103]

   The legal notion of reserving land from sale, and reserving it or dedicating it for a purpose, may be found in the Crown Lands Alienation Act 1861, the Crown Lands Act 1884 and the Crown Lands Consolidation Act 1913. The Crown Lands Act 1989 introduced the notion of a reserve trust where land had been reserved for a public purpose.

6. [104]

   (To be clear, these reasons do not concern a separate notion of “reserve”, namely, a reservation of minerals in a grant, although such reservations have also resulted in litigation of high constitutional importance in New South Wales, including the reservations of coal in Attorney-General v Brown (1847) 1 Legge 312 and the absence of an explicit reservation of copper in Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; [2010] HCA 27.)

7. [105]

   “Setting apart” appears to have been a more general term, with a less precise use. Thus s 12 of the Real Property Act 1862 (NSW) provided that the statute applied to “[a]ll waste lands and all lands set apart for public purposes” remaining unalienated by the Crown when those lands were alienated in fee. Section 21(iv) and (v) of the Crown Lands Act 1884 referred generally to “Lands reserved or set apart for Town or Suburban lands or for village sites” and “Lands reserved from sale or dedicated reserved or set apart for any public purpose other than as aforesaid” when defining the lands excluded from conditional sale. Section 3 of the Commons Regulation Act 1898 (NSW) went so far as to define “set apart” to include “allotted, granted, notified, reserved, and dedicated”. As noted above, more recent legislation, notably the Rookwood Necropolis Amendment Act 2004, used “set aside” rather than “set apart”, but did so in a way suggesting that the verbal change carried with it no legal consequence. Section 12.26 of the Crown Land Management Act 2016 returns to the language of “set apart” when defining “Crown reserve” to include “any other land set apart, dedicated, reserved, granted or held” for any public purpose under statute.

8. [106]

   Returning to Parker J’s reasons for judgment, his Honour summarised the case law on two issues: the general principles established by cases on the interpretation of statutes which provide for land or other property to be held “on trust” for specified persons or purposes, and the cases on charitable trusts for burial and cremation.

9. [107]

   At [183]-[211] his Honour addressed the first issue, beginning with Kinloch v Secretary of State for India in Council (1882) 7 App Cas 619. I shall return to those principles, which make it clear that a use in a statute of the term “trust” may, but need not, give rise to a trust recognised in equity. Further, whether or not a “trust” created by statute was a trust recognised in equity did not depend on whether remedies were available to enforce a “statutory trust”. His Honour noted the following passage in Bathurst City Council at [67] concerning such a statutory trust:

10. [108]

    Parker J said at [207] that that sentence was important because:

11. [109]

    The point of this observation was to illustrate the fineness of the distinction between a charitable trust recognised by equity and statutory trusts.

12. [110]

    The dispositive analysis occupies the final third of the reasons for judgment. Parker J started with the effect of the Necropolis Act 1867, addressing this at [218]-[237]. He regarded the critical provision as being s 4, and recorded counsel’s submission that its effect was to displace any principle in Kinloch and create a charitable trust for the purpose of burying the dead of the Church of England denomination. His Honour rejected the plaintiff’s reliance on Ward, although acknowledging that it provided the “strongest apparent support for counsel’s submission”: at [220]-[221]. His Honour noted that, had there been a conscious desire to create a trust in equity, that could have been done by making a grant to private trustees for the relevant purpose: at [226]. But his Honour noted that a grant structure was not used, and added at [227]:

13. [111]

    His Honour added at [228] that there were “clear and close parallels with the system of regulation of public parks established by the Public Parks Act in 1854”, which contained the same three forms of public interest regulation.

14. [112]

    Turning to the regulations to which the trustees were subject, his Honour noted at [231] that the similarities with private trustees being controlled by the terms of the trust, and being removed by an appointor, did not take the argument very far: “The effect, both in a trust in equity and in a statutory trust, is that control over a part of the administration of the ‘trust’ is conferred on a third party and the Court’s power to intervene is correspondingly limited”. His Honour made two observations concerning the rules and regulations at [235]-[236]:

15. [113]

    Parker J concluded that the exercise by a body of trustees of the regulation-making power would not have been cognisable in this Court’s charitable trust jurisdiction: at [237]. Instead:

16. [114]

    The later statutes specific to the Rookwood Necropolis took the analysis no further. His Honour placed much weight on the fact that the land became subject to Crown lands legislation, saying at [242]-[244]:

17. [115]

    His Honour noted the change of wording in s 12 of the Necropolis Act 1901, and held that the land was thereafter “held by the Trustees on the new, slightly revised, purpose in s 12”: at [256]. This was significant because of the consequences of the repeal of s 12 in 2004. Dispositively, his Honour said at [261]:

18. [116]

    His Honour concluded that “if any trust in equity subsisted at all after the repeal of s 12, it would properly have been characterised as a trust for purposes under the Crown Lands Act”: at [262]. He then addressed the parties’ contention that a trust recognised in equity had been created. His Honour said at [263]-[264] that:

19. [117]

    His Honour doubted that there was any practical purpose for the role of Chancery jurisdiction, and drew attention to the practical difficulties in, say, an application to settle property cy-près if the trust became unworkable, when at the same time the Minister was seeking to revoke the relevant dedication. Likewise, his Honour contrasted the statutory obligations to provide statements of account with the supervisory jurisdiction in equity. He noted at [265] that:

20. [118]

    Parker J rejected the proposition from Mayor of Lyons v Advocate-General of Bengal (1876) 1 App Cas 91 that once a charitable trust is established it does not lapse, saying that there was a difficulty in applying it to legislation: at [267]. His Honour noted that statutory developments had carried along the equitable jurisdiction, for example in the extension of charitable trusts to trusts for cremation, but then observed at [269]:

21. [119]

    Parker J rejected the submission based on the preservation of the vesting by s 11, on the basis that it was s 12 not s 11 which created the trust obligation: see at [272]. His Honour rejected a further submission based on s 30(1)(c) of the Interpretation Act concerning “accrued” rights and obligations, saying at [273]:

22. [120]

    Parker J rejected reliance on absence of any indication in the explanatory memorandum that a trust was to be abolished, saying that this took the matter no further, because “[t]here is no sign of any appreciation in the memorandum that there was a trust, let alone a trust in equity as opposed to a statutory trust”: at [275]. His Honour concluded at [276]:

23. [121]

    Finally, Parker J referred to the legislation enacted in the last decade, and said at [277]:

The parties’ submissions

1. [122]

   The plaintiffs contended that the proclamations of 7 April 1868 read with s 4 of the Necropolis Act 1867 established a trust in equity over the Catholic portion of land at Rookwood Cemetery. They said that it was clear that a trust in equity may arise from a relationship regulated or established by statute: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 at [119]; Wellington Capital Ltd v Australian Securities and Investments Commission (2014) 254 CLR 288; [2014] HCA 43 at [12]-[14]; Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 162-163; [1993] HCA 1.

2. [123]

   The plaintiffs submitted that the use of the term “trust” is taken, unless a contrary intention appears, to be a use in its legal and technical sense: Bathurst City Council at [45]. They also relied upon the references to “vesting”, to “trustees”, and the stipulation that the trustees and their successors shall hold that land for ever upon that trust. Departing from the approach taken by Parker J, they did not accept that it greatly mattered whether the vesting occurred by private grant or the operation of statute; they said that “the question of whether a trust enforceable in equity was created by an action of the Crown was to be determined by looking at the whole instrument and at its nature and effect: Brown v Harris (1807) 13 Ves Jun 552; 33 ER 401 at 403; Kinloch v Secretary of State for India in Council (1882) 7 App Cas 619 at 626. It is the vesting of the legal estate in the trustees subject to the prescribed purpose that indicates an intention to create a trust, not how the vesting was effected.”

3. [124]

   The plaintiffs added:

4. [125]

   The plaintiffs denied that anything turned on the trustees’ rule-making power being subject to the Governor’s approval or being governmental in nature. That was said not to count against the establishment of a charitable trust by the Necropolis Act 1867; the Legislature might confer other statutory roles on a trustee which would sit outside the trust.

5. [126]

   It will be convenient to defer the parties’ submissions on the changed wording of the Necropolis Act 1901 until the end of these reasons, when addressing the second issue.

6. [127]

   Turning to the amendments made by the Rookwood Necropolis Amendment Act 2004, the plaintiffs submitted that the new provisions effectively replicated the omitted ss 7, 7A and 15. That is, “they provided a mechanism for ensuring that land dedicated at the Necropolis was treated as a reserve under the [Crown Lands Act 1989] without derogating from any obligations imposed by the 1901 Act”.

7. [128]

   Regarding the omission of s 12, which Parker J had regarded as determinative, the plaintiffs accepted that an omission of a provision is typically tantamount to a repeal: State of New South Wales v Maxwell [2007] NSWCA 53 at [58]; but maintained that s 12’s repeal did not extinguish any trust over the Catholic portion of land at Rookwood Cemetery.

8. [129]

   There were four strands to their submissions.

   1. (1)

      First, the vesting of the land effected by s 11 of the Necropolis Act 1901 remained unaffected by the Rookwood Necropolis Amendment Act 2004 (albeit the 2004 Act reworded s 11 to provide relevantly that each portion of land set apart under that Act shall vest “in the reserve trust” of the denomination for which it is set apart).

   2. (2)

      Secondly, the repeal of an Act did not affect any obligation or liability acquired or accrued under the repealed Act: Interpretation Act, s 30. As Dixon CJ put it in Maxwell v Murphy (1957) 96 CLR 261 at 267-268; [1957] HCA 7, it did not apply to transactions “past and closed”. A charitable trust having been established by the vesting of land in trustees on trust in 1868, the obligation to hold the land on the terms of that trust, as amended in 1902 by s 12, was not abolished simply because s 12 has been repealed.

   3. (3)

      Thirdly, such an outcome could not have been intended given that the purpose of the Rookwood Necropolis Amendment Act 2004 was to remove provisions that were perceived to have fallen into disuse; it was not apparent that there was any intention to effect a change to the substantive obligations imposed by the 1901 Act on those in whom the land at the Rookwood Necropolis had been vested. That conclusion was reinforced by the terms of s 6A(6) which mirrored s 15 of the Necropolis Act 1901.

   4. (4)

      Fourthly, the plaintiffs relied on the general principle that a charitable trust that has taken effect “never fails and cannot lapse”: Mayor of Lyons v Advocate-General of Bengal at 113. The plaintiffs said that it was most unlikely that the legislature could be taken to have abolished a charitable trust without expressly saying so.

9. [130]

   Concerning the effect of s 30(1)(c) of the Interpretation Act, the plaintiffs disagreed with the distinction drawn by Parker J between rights and obligations (which were preserved by s 30(1)(c)), and institutions (which were not). The plaintiffs submitted:

10. [131]

    Concerning the amenability of the trustees and the land to the full exercise of powers under the Crown lands legislation once s 12 was repealed, including amalgamation, rededication and revocation, the plaintiffs distinguished the existence of such a power and its exercise. They submitted that “the mere possibility that those powers might be exercised by the Minister so as to extinguish the subsisting charitable trust, such as by rededicating the land for a different purpose”, did not involve “the imposition of a new inconsistent purpose so as to abolish any existing trust”.

11. [132]

    The plaintiffs said that Parker J had mischaracterised the argument based on the principle in Mayor of Lyons v Advocate-General of Bengal. They maintained that the argument had not been that the repealing statute must be read down (for there is no doubt that s 12 of the 1901 Act was repealed), but rather it was that the principle in Mayor of Lyons v Advocate-General of Bengal provided “a further reason why there was no contrary intention capable of defeating the presumption that the repeal of s 12 did not extinguish rights and obligations already acquired”.

12. [133]

    The plaintiffs acknowledged that the trust had long been subject to the exercise of statutory power. They noted that many charities are subject to regulatory controls, including hospitals, universities, aged care and retirement village providers, such that “[t]he existence of regulatory control powers is not inconsistent with the existence of a charitable trust within the Court’s equitable jurisdiction: Construction Training Board v Attorney-General [1973] Ch 173 at 188-189”. The Attorney candidly (for arguably this undercut his primary submission) noted that s 5(1) of the Cemeteries and Crematoria Act 2013 provided, relevantly, that “[n]othing in the Crown Lands Act 1989 or an instrument made under that Act … prevents or restricts the use of a reserve for anything that is authorised, permitted or required by or under this Act”.

13. [134]

    Further, the plaintiffs submitted that the particular powers conferred by the Cemeteries and Crematoria Act 2013 did not affect the conclusion. They said that some of the powers identified by Parker J at [146]-[148] had antecedents in Crown lands legislation (for example, ss 112 and 114 of the Crown Lands Act 1989 authorised the Minister to direct a reserve trust to prepare a plan of management, while s 122 required the provision of financial reports). Those provisions had been anticipated in similar provisions in the Crown Lands Consolidation Act 1913 (by ss 37O, 37P, 37T and 37U). They added that the susceptibility of the trustee and the trust property to statute was inevitable, but whether or not any exercise of statutory power would extinguish the trust would turn on its nature.

Overview of issues

1. [135]

   In light of the above, it is possible to identify with more precision the steps in the analysis which will resolve the issues raised in the summons.

2. [136]

   The threshold question is the juristic nature of the relationship between the Catholic portion of Rookwood Cemetery and its legal owners, the trustees, in 1868 and 1893. It will be necessary to attend to the different way in which the extension of the cemetery was vested in trustees than had occurred in 1868, but the real issue is as to the effect of the Necropolis Act 1867 and the proclamations made pursuant to it. In the parties’ submissions, this was labelled as whether there was created a “statutory trust” or a charitable trust recognised by equity.

3. [137]

   The next question is whether or not the legislation in 2004, 2009 or 2013 abolished any charitable trust. As noted above, Parker J concluded that if there was a charitable trust, it was abolished in 2004, and if not, then the position was a fortiori in relation to the subsequent repeal in 2009 of what was left of the Necropolis Act 1901 and the enactment of the new regulatory scheme in 2013.

4. [138]

   The third question is a narrow question of construction of cl 11(2A) of Sch 7 of the Crown Land Management Act 2016. If there was a charitable trust which survived the legislation in 2004, 2009 and 2013, then insofar as the trust property was other than land at Rookwood, did it survive the changes effected by the 2016 Act insofar as it extended to property other than land at Rookwood?

5. [139]

   Finally, if there continues to be in existence a charitable trust, what is the charitable purpose and, in particular, did that purpose change in 1901 following the enactment of the Necropolis Act 1901 with its different wording?

First issue: the effect of the Necropolis Act 1867

1. [140]

   Parker J did not need to determine, and did not determine, whether the Necropolis Act 1867 and the proclamations made pursuant to it established charitable trusts, as opposed to statutory trusts, although to be fair his Honour’s reasons expressed considerable doubt on that point. On the view his Honour took, it was sufficient to hold that if the Necropolis Act 1867 and proclamations created a charitable trust for each denominational body of trustees appointed to hold the legal estate in the portion of the land for that denomination’s part of the cemetery, that trust was extinguished when the Necropolis Act 1901 was repealed. That was an entirely legitimate mode of reasoning, which reflects the familiar incremental approach of the common law, “determining those points and only those points necessary to a decision” (see Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [225]), which is “the standard common law judicial technique of deciding no more than what needs to be decided”: Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [76]. Parker J was conscious of the fine distinction between a charitable trust and a “statutory trust”, and the contestability of the threshold point of the legal character of the events of 1867, and it may readily be seen why his Honour took a minimalist approach. Because I respectfully depart from his Honour’s reasoning that the statutes of 2004, 2009 and 2013 which repealed the Necropolis Act 1901 and created a new funeral industry regulator extinguished any charitable trust, it is necessary to resolve this point, and it is logical to do so at the outset.

2. [141]

   Charitable trusts have a complex relationship with statute. The preamble to the Statute of Elizabeth 1601 (43 Eliz I c 4, a statute which was probably never in force in New South Wales) continues to exercise a decidedly odd lingering effect upon the law of charity in Australia, as was noted in Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168; [2006] HCA 43 at [96]-[97]. So too does the Statute of Mortmain 1736 (9 Geo II c 36, a statute which was the outstanding example of legislation which was not received in New South Wales: see Attorney-General v Stewart (1817) 2 Mer 143 at 159; 35 ER 895 and what was said of it in Walker v Scott (No 1) [1825] NSWSupC 60; [1825] NSWKR 6 and R v Maloney (1836) 1 Legge 74; ultimately Attorney-General v Stewart was confirmed by the House of Lords in Whicker v Hume (1858) 7 HLC 124; 11 ER 50). Indeed, one aspect of the “inherited, generous conception of legal charity” upon which the plaintiffs rely derives from the approach taken favouring heirs-at-law in determining whether devises which did not comply with the formalities of that latter statute were “charitable” and therefore void: see G Jones, History of the Law of Charity 1532-1827 (1969, Cambridge University Press) at 107.

3. [142]

   In addition to the contribution to the Australian law of charity indirectly made by ancient statutes which were never in force in this country, a different dimension of complexity is introduced because different Australian States have altered the law of charity in different ways by their Charitable Trusts Acts (in New South Wales, the Charitable Trusts Act 1993 (NSW)). It will be necessary in what follows to have regard to one expanded aspect of charity in Western Australia, in order to address the significance of one passage in Ward. Section 5(1) of the Charitable Trusts Act 1962 (WA) provided that:

4. [143]

   Similar provision is now made in s 5 of the Charitable Trusts Act 2022 (WA). But no such legislation has been enacted in New South Wales, and the effect of Re Nottage [1895] 2 Ch 649 and its endorsement by a unanimous High Court in Royal National Agricultural and Industrial Association v Chester (1974) 48 ALJR 304; 3 ALR 486 may mean that some trusts for some recreational purposes, including those whose sole purpose is to advance sport, are not charitable in this State. I say “may” because there are uncertainties in this area which warrant revisiting in an appropriate case; the authorities are reviewed in Strathalbyn Show Jumping Club Inc v Mayes (2001) 79 SASR 54; [2001] SASC 73 at [69]-[88].

5. [144]

   Federalism introduces further complexity. The Charities Act 2013 (Cth), informed by the course taken in s 3 of the Charities Act 2011 (UK), very substantially broadens the concept of charity, but speaking generally applies of its own force only as a matter of statutory construction of federal law. In addition, Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 illustrates that the law of charity in Australia must accommodate constitutional considerations; it is a rare example of a constitutional implication altering a rule or principle of judge-made law. Aid/Watch holds that the “political trust” doctrine associated with Bowman v Secular Society [1917] AC 406 is not part of the Australian law of charity, because “[t]he system of law which applies in Australia … postulates for its operation the very ‘agitation’ for legislative and political changes” which was regarded as the basis for the line of authority stemming from Bowman: see at [43]-[48].

6. [145]

   The Charitable Trusts Act 2022 (WA) also extends the notion of “charitable purpose” by s 4 to include “a charitable purpose as defined in the Charities Act 2013 (Commonwealth) section 12”. Accordingly, in cases to which the Charitable Trusts Act 2022 (WA) applies, a “charitable purpose” will include the purposes of “advancing culture”, “promoting or protecting human rights”, “preventing or relieving the suffering of animals” and so on, which transcend the traditional conceptions of charity established in Incorporated Council of Law Reporting (Q) v Federal Commissioner of Taxation.

7. [146]

   In short, the law of charity is an example par excellence of how “[t]he interrelation and interaction between common law and statute may trigger varied and complex questions”: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 at [18]. The subtleties of the interaction can be easily overlooked, as is observed in R French, “Trusts and Statutes” (2015) 39(2) Melbourne University Law Review 629 and J Dietrich and I Field, “Statute and Theories of Vicarious Liability” (2020) 43(2) Melbourne University Law Review 515, as well as in many of the chapters of P Vines and S Donald (eds), Statutory Interpretation in Private Law (2019, Federation Press), and D Rolph, J Eldridge and T Pilkington, Australian Tort Law in the 21st Century (2024, Federation Press) and elsewhere.

8. [147]

   It is useful to bear in mind those ways in which statute interacts with the law of charitable trusts in order to focus attention upon the critical distinction on which Parker J relied, namely, the difference between trusts for charitable purposes recognised at private law and trusts for public purposes which are creatures of statute.

9. [148]

   On the one hand, a charitable trust of land may be created at private law by the unilateral act of its owner, by deed which either transfers the land to a trustee for a charitable purpose, or declares that the owner holds as trustee for a charitable purpose. Transfer and declaration of trust are the two principal ways of creating express trusts, including charitable trusts. Statute may of course authorise the owner of land, including Crown land, to execute a grant which creates a charitable trust. The Sydney Necropolis Act 1847 had adopted that course, although the grants of land envisaged by that statute never occurred.

10. [149]

    On the other hand, statute may also directly create a charitable trust recognised in equity. It may do so expressly. An example may be seen in s 3 of The Sir Moses Montefiore Jewish Home Act 1927 (NSW), which provides that “the said land shall be held by the Body Corporate freed and discharged from any and all trusts affecting the same but upon a charitable trust for the objects of the Body Corporate as specified in section five of this Act”. A different mode of drafting may be seen in s 8(1) and (2) of the James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 (NSW):

11. [150]

    Thus statute may create a charitable trust recognised in equity, and it may also confirm that an existing trust is a charitable trust, including, to the extent necessary, modifying the law of charity in order to accommodate it.

12. [151]

    Conversely, there will be occasions when statute creates, or authorises the creation of, a “trust” for a public purpose which is not a charitable purpose. This is an example of a “statutory trust”. Such a trust stands outside the range of institutions recognised in equity. The nomenclature is less than ideal, having regard to the pervasive role played by statute in this area. But I shall use the language of the High Court in Bathurst City Council at [67] to refer to a “trust” which, “whilst not imposing a trust obligation as understood in private law, may fairly be described as a ‘statutory trust’ which bound the land and controlled what otherwise would have been the freedom of disposition enjoyed by the registered proprietor of an estate in fee simple”. The Court had relied upon what Dixon, McTiernan and Fullagar JJ had said in Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640; [1952] HCA 1 of the “Superannuation Fund Board”, a body corporate established by Tasmanian statute which managed and controlled a public sector superannuation fund: “The trust is not a trust for persons but for statutory purposes”.

13. [152]

    And just as it is possible for statute to create a “trust” for purposes that are not charitable purposes (which is not a trust recognised by equity), it must also at least in principle be possible for statute to create a “trust” for purposes which are charitable purposes but which is nonetheless not a trust recognised by equity. The significance of this distinction in the present case is simple: if what has been created is a creature of statute, as opposed to a trust recognised by equity, then it can scarcely survive the statute’s repeal.

14. [153]

    The issue was somewhat different in Bathurst City Council, namely, whether land vested in the Council was “land subject to a trust for a public purpose” for the purposes of a statutory provision. Nonetheless a unanimous High Court at [44]-[48] formulated some of the applicable principles. Relevantly for present purposes, one was the “general rule” that “a term such as ‘trust’ is to be taken, unless a contrary intention appears, as having been used by the legislature in its legal and technical sense”: at [45]. However, it was also necessary to keep in mind propositions based on Lord Diplock’s speech in Town Investments Ltd v Department of the Environment [1978] AC 359 at 382 that “the term ‘trust’ is not a term of art in public law, even where it is used to describe the capacity in which property is held by a public authority and ‘where the person to be benefited is a subject’”, and particularly “where the property in question is land conveyed to such an authority for other than commercial value and consequent upon the exercise of powers to implement planning policy”: at [47]. The result was that the statutory expression was construed widely:

15. [154]

    Bathurst City Council thereby confirms that statute can establish a “trust” which is broader than the traditional conception of a trust in equity. The first issue in the present case is the converse: did the Necropolis Act 1867 which used the language of, inter alia, “dedicate and set apart”, “vested”, “legal estate” and “Trustee”, create a “statutory trust” or a trust which would be recognised in equity?

16. [155]

    To reiterate, sometimes the position will be clear. If statute establishes a “trust” for a purpose, and the purpose is outside the legal conception of charity, then unless the statute is taken to have expanded the general law of charity, it will not be possible to regard the trust as a charitable trust, and such cases will readily be regarded as statutory trusts, and when the statute is repealed, the trust will cease to exist. However, that is not the present case. The purpose of the interment of the dead is unquestionably a charitable purpose: Scottish Burial Reform & Cremation Society Ltd v Glasgow Corporation [1968] AC 138. But in principle it is possible for statute to create a relationship called a “trust” which resembles a trust for a charitable purpose, but which is not recognised in equity and will not survive the statute’s repeal.

17. [156]

    The question may in some cases be made more complex by reason of two other considerations. The first is that as mentioned above at [142]-[146] there is not a monolithic law of charity within Australia. By reason of State statutes, there are purposes which are charitable for the purposes of the law of charities in Western Australia (such as certain recreational purposes), but arguably not charitable for the purposes of the law of New South Wales. Conversely, there are purposes which are charitable for the purposes of the law of charities in New South Wales (such as discharging the liabilities of certain James Hardie entities) which are arguably not charitable for the purposes of the law of charities in Western Australia.

18. [157]

    The second potentially complicating consideration is that, putting to one side for a moment statute, the law of charity does not stand still. To the contrary, the law of charity is, as Lord Wilberforce put it, “a moving subject” which has evolved “as new social needs arise or as old ones become obsolete or satisfied”: Scottish Burial Reform & Cremation Society at 154. The result in Aid/Watch is an illustration of this, and the joint judgment endorsed his Lordship’s observation at [18].

19. [158]

    How then is it to be determined whether a trust created by statute is one which is recognised in equity or is merely a “statutory trust”? The starting point must be the language of the statute. The language of the Necropolis Act 1867 strongly evokes the language of a trust in equity. Section 4 provided that the “trustees” shall have “vested” in them the “legal estate” of the portion of land for the purpose of the land being used as a “Burial Ground for burying the dead” of such denomination. The trustees held the land for the purpose of “a Burial Ground for burying the dead as hereinbefore mentioned” and were to do so “for ever”. Section 4 concluded with the language of trust: “and the land so vested in them … shall remain vested in the said Trustees and their successors for ever upon the trusts and purposes and subject to the provisions of this Act”. Likewise, the proclamations made on 7 April 1868 used the language of “trust” and appointed five men as “Trustees of the lastly above described land”.

20. [159]

    It will be seen that there is a repeated deployment of the technical legal language of a charitable trust: “vest”, “legal estate”, “purpose” and “trustee”. If all that was created was a “statutory trust” which did not amount to an institution recognised at private law, that language was unnecessary. (I shall return to the sense of “dedicate and set apart” in s 1 of the statute.)

21. [160]

    However, as Parker J observed, the question is not whether the language is sufficient to create a trust. Bathurst City Council emphasises that even a statute which expressly uses the word “trust” may fall short of creating a trust recognised at private law and instead may merely create a “statutory trust”. In the circumstances that arise in this litigation, the issue amounts to determining whether a bundle of rights, obligations, powers, privileges and immunities which constitute a trust in equity was then and there created by the 1867 statute and the 1868 proclamations, or alternatively, whether the statutory regime created rights, obligations, powers, privileges and immunities which mirrored those recognised in equity, but were coterminous with the statute’s continuing in force.

22. [161]

    For many purposes nothing will turn on the distinction. But if the effect of the statute was to create an institution recognised in equity, then it will survive the repeal of the statute (unless of course the statute goes further and extinguishes the trust recognised in equity). If the effect of the statute was to create rights, obligations, powers, privileges and immunities which resembled those in equity, but which depended upon the statute continuing in force, then those rights, obligations, powers, privileges and immunities will not survive the statute’s repeal.

23. [162]

    Hence the critical words in s 4 of the Necropolis Act 1867 are two expressions which are easily overlooked: “by virtue of this Act” and the repeated “for ever”. Both bear directly upon the juristic relation created by the statute and the proclamations.

24. [163]

    The words “by virtue of this Act” might seem on their face to have a plain meaning: it is by virtue of this Act (as opposed to equity) that the trustees shall hold the land for the purpose of a burial ground. Yet it is readily seen that they are quite ambiguous. One possibility is that they mean that the statute creates and sustains the trust. An alternative is that they mean that the statute creates a mechanism (namely, the dedication and setting apart under s 1, and the setting apart under s 2), which when done will engage the other provisions of the statute and thereby yield a charitable trust recognised in equity.

25. [164]

    The words “for ever” might seem innocuous enough. But s 4 repeats them (“shall hold for ever the portion of land” and “shall remain vested in the said Trustees and their successors for ever upon the trusts and purposes”). A similar question arose in Fielding v Houison (1908) 7 CLR 393; [1908] HCA 81 where based on the use in the statute of “endow” and the ancient concept of “glebe” (being land permanently appropriated to the maintenance of clergy), Griffith CJ said at 404 that it was “impossible to doubt that this provision was to be permanent”. The repeated use of “for ever” is far clearer. Those words can only connote a perpetual state of affairs. It is in the nature of a charitable trust that it lasts for ever; the rule against remoteness of vesting does not apply (that is the case both at general law (Monds v Stackhouse (1948) 77 CLR 232 at 243, 248; [1948] HCA 47) and as modified by the Perpetuities Act 1984 (NSW): see s 16(3) and (4)). In contrast, it is in the nature of any unentrenched statute that it may be amended or repealed. That tends to suggest that if the unambiguous meaning of the words “for ever” is to be achieved, then the statute must be regarded as creating a charitable trust. That in turn suggests that the words “by virtue of this Act” bear the second meaning postulated in the previous paragraph.

26. [165]

    I have concluded that the 1867 statute and 1868 proclamations created a charitable trust. That conclusion turns in part on the combination of the elaborate use of the technical language of private law, and the repetition that what may be created shall last “for ever”, but it is reinforced by two further considerations: authority and purpose. Those two considerations are linked, because I find it impossible to sever the line of decisions commencing with Attorney General v Eagar (1864) 3 SCR (NSW) 234 from the context in which the Necropolis Act 1867 and the proclamations thereunder were made.

27. [166]

    Attorney General v Eagar is highly significant, but in order to explain why, it is necessary to go back two centuries to the creation of the “Clergy and School Lands Corporation”.

28. [167]

    The conception of a body linking religion and education was explicit in Earl Bathurst’s letter of instruction to Commissioner Bigge of 6 January 1819, which included:

29. [168]

    By a charter of incorporation dated 9 March 1826, King George IV constituted certain men and their successors as a “body politic and corporate, with perpetual succession, by the name of the Trustees of the Clergy and School Lands in the colony of New South Wales”. The body became known as the Clergy and School Lands Corporation. The men were the Governor, the Chief Justice, the Archdeacon, the Colonial Secretary, the Attorney General, the Solicitor General and the nine senior Church of England chaplains in the colony. The Archdeacon, Thomas Hobbes Scott, was the newly appointed senior member of the Church of England in the colony, subject to the Bishop of Calcutta. Scott had previously accompanied Commissioner Bigge as his secretary when investigating the condition of the colony. See S McCulloch, “The Attempt to Establish a National System of Education in New South Wales, 1830-1850” (1959) 28(1) Pacific Historical Review 19, his entry in the Australian Dictionary of Biography: Volume 2 (1967, Melbourne University Publishing) at 431-433 and the entry on the Church and Schools Corporation in the Dictionary of Educational History in Australia and New Zealand (C Campbell, 31 January 2018).

30. [169]

    The point of the Clergy and School Lands Corporation was that it would hold lands to be granted to it, from the net revenue of which, one half was to be devoted to building and improving churches, parsonages and school-houses, while the other half was to be applied for the support of clergy and schoolmasters. Importantly, cl XXXVI of the charter made provision for the dissolution of the corporation by order issued by the Crown on the advice of the Privy Council, in which case:

31. [170]

    Archdeacon Scott is recorded as stating in his Charge to the Clergy on 2 March 1826 (Colonial Times and Tasmanian Advertiser, 3 March 1826, p 3, reproduced in the Church and Schools Corporation’s entry in the Dictionary of Educational History in Australia and New Zealand):

32. [171]

    The attempt selectively to endow the Church of England was not a success, but some 450,000 acres were granted to the Clergy and School Lands Corporation before it was dissolved in 1833. Thereafter, the land reverted to the Crown in accordance with the clause in the charter reproduced above, and was outside the control of the colonial government until responsible government was achieved (the subsequent imperial legislation concerning glebe lands was considered in Fielding v Houison). After responsible government was conferred, and in circumstances described at length in J Bennett, Sir James Martin: Premier and Chief Justice of New South Wales (2005, Federation Press) at 224-229, a test case was brought, in order to resolve “the nucleus of a bitter political dispute”. The issue was whether the closing words in cl XXXVI of the charter referring to “the maintenance and promotion of religion, and Education of Youth in the said colony” meant that the revested lands were held on a charitable trust for that purpose.

33. [172]

    The action was unusually constituted. The plaintiff and defendant were members of the same colonial government. Formally, the Colonial Attorney General brought proceedings against the Colonial Treasurer seeking a verdict representing sums of money paid by the Colonial Treasurer to various clergymen out of moneys received by him as rents from the lands which had revested in the Crown. The Colonial Treasurer had done so on the basis that the land remained subject to a trust following the dissolution of the Clergy and School Lands Corporation, in accordance with an abundance of advice (a letter from Forbes CJ, Stephen and Dowling JJ in 1831, the opinions of the colonial law officers (Plunkett and Manning in 1846, Darvall and Manning in 1856, Wise in 1857) and the English Law Officers (Atherton and Palmer (the future Lord Selborne) in 1862)) – all of which were annexed to the reported judgment. But Attorney General Martin and his Solicitor General (Lutwyche) disagreed. The leaders of the Bar (Manning QC, Darvall QC and Gordon) appeared for the real parties interested, on behalf of the Roman Catholic church, the Church of England and the Wesleyans, who had received the money. Attorney General Martin argued the case in person.

34. [173]

    The questions were whether the lands which by 1864 now vested in the Crown were subject to a charitable trust; and, if so, whether subsequent legislation altered that trust, and whether the land fell within the “waste lands of the Crown” and thereby within the legislative competence of the New South Wales Legislature. For it needs to be borne in mind, as Barton ACJ explained in Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 424; [1913] HCA 33, that until the passing of the New South Wales Constitution Acts in 1855 “the successive grants of legislative power to the Colony carefully reserved to the Crown of the United Kingdom, subject of course to any Imperial Statute, the lands belonging to the Crown within the Colony, and their entire control and management”. Or, as it was put by Barwick CJ in New South Wales v Commonwealth (Seas and Submerged Lands Act case) (1975) 135 CLR 337 at 369; [1975] HCA 58:

35. [174]

    Hence the lands granted to the Trustees of the Clergy and School Lands Corporation which revested in the Crown in 1833 were, until the second half of the nineteenth century, not subject to local colonial legislative power.

36. [175]

    All members of the Full Court concluded that the charter and the grants created a charitable trust, for the purposes identified in the clause in the charter authorising the dissolution of the corporation, such that the land was held by the Crown for the promotion of religion and for the education of youth: see at 257 (Stephen CJ), 265 (Milford J) and 267-268 (Wise J).

37. [176]

    The Court also held that the lands did not answer the description of “waste lands” within the meaning of the Australian Waste Lands Act 1842 (5 & 6 Vic c 36) or the New South Wales Constitution Acts because they were “dedicated and set apart for some public use”.

38. [177]

    To anticipate what follows, the Full Court’s decision that a charitable trust was created and survived the dissolution of the corporation was repeatedly confirmed to be correct by the High Court of Australia, but its conclusion that the lands were not “waste lands” and therefore outside the legislative competence of the New South Wales Legislature was incorrect, as was held in Williams v Attorney-General for New South Wales (in which challenge was made to the State government’s decision to permit members of the public to visit Government House, and in which one strand of the argument was that the land was held on charitable trust: see (1913) 16 CLR 404 at 423 and Lord Sumner’s advice dismissing the further appeal in (1915) 19 CLR 343 at 346). But it is the former, and not the latter, aspect which matters for present purposes.

39. [178]

    It may be noted that Attorney General Martin, who had appeared in person and decisively lost a politically charged case, was Premier as well as Attorney General at the time his government enacted the Necropolis Act 1867 three years later.

40. [179]

    When in late 1867 the Necropolis Regulation Bill was passing through the Legislature, and when in early 1868 “trustees” were appointed of the various portions of Rookwood Necropolis, it is difficult to resist the inference that this occurred with the outcome of Attorney General v Eagar in mind. That decision was recent, high-profile and politically charged. It concerned a large tract of Crown land to be used for purposes associated with religion. It held that the steps taken created a charitable trust which survived the dissolution of the Clergy and School Lands Corporation, rejecting Martin’s submissions to the contrary.

41. [180]

    Windeyer J’s reasons in Randwick Corporation v Rutledge (1959) 102 CLR 54; [1959] HCA 63 commanded the assent of Dixon CJ, Fullagar and Kitto JJ. Mr Rutledge was one of three trustees of the land used as Randwick Racecourse and the question was whether the land was exempt from rates on the basis that it was “land vested in trustees and used as a public reserve” within the meaning of s 132(1)(c) of the Local Government Act 1919 (NSW), which statute defined “public reserve” to mean “public park and any land dedicated or reserved from sale by the Crown [for various public purposes]”. The land had been granted to trustees by deed executed in 1863 following what amounted to its dedication in 1859.

42. [181]

    Windeyer J extensively analysed the use of the words “dedicate” and “reserve”. His Honour started with the propositions that “the word ‘reserve’ in Australia has gained a special meaning from the history of colonial land settlement”, and that the key to the meaning of the words “dedicated or reserved from sale” was “to be found in the history of the Crown lands legislation”: at 69-71.

43. [182]

    Land which was “reserved from sale” took a particular meaning following the change in policy resulting from Wakefield’s theories, as a result of which all land was to be disposed of only by sale and at a minimum price, save for land appropriated for public purposes. Statutes of 1842 and 1846 referred, respectively, to land which had been “dedicated and set apart” and “dedicated or set apart” as excluded from the general power to dispose of “the waste lands of the Crown”.

44. [183]

    After commencing (at 74) with the point that, at common law, only a highway might properly be said to be “dedicated”, and then surveying decisions in the first half of the nineteenth century on dedication, Windeyer J stated:

45. [184]

    Windeyer J then addressed the main decisions, including at the effect of the decision in Attorney General v Eagar, giving prominence to the statutory uses of the word “dedicate” as follows:

46. [185]

    Three main points emerge from the above. The first is that “dedicate” was regarded by the mid-nineteenth century as the proper verb used to describe lands granted for public charitable purposes. The second is that land so dedicated ceased to be subject to governmental control as Crown land. The third is that the High Court confirmed the correctness of the charitable trust which survived the dissolution of the Clergy and School Lands Corporation in Attorney General v Eagar.

47. [186]

    There were many issues in this appeal heard over eight days and for which the reasons for judgment occupy the first 400 pages of volume 213 of the Commonwealth Law Reports. Only one issue is presently important. It concerned the effect of Orders in Council made by the Governor pursuant to s 33 of the Land Act 1933 (WA) vesting Crown land in local councils, bodies corporate or other persons. The High Court held that where such vesting occurred before the commencement of the Racial Discrimination Act 1975 (Cth), there was an extinction of all native title rights. Because Parker J took a different view of the effect of the salient aspect of the reasoning, it is best to reproduce in full what was said by Gleeson CJ, Gaudron, Gummow and Hayne JJ at [235]-[241]:

48. [187]

    The joint judgment attached significance to the power to reserve Crown land in s 33, to the fact that the power used the language of “vesting” and referred to holding the land in trust for specified public purposes, and contrasted the steps authorised by s 34 to place a reserve under the management of a local council or body corporate. The former power was regarded as creating a public charitable trust when the public purpose was a charitable purpose within the legal conception of charity in equity. The final paragraph reproduced above deals with the position when the power extended to reserving land for a non-charitable purpose, in which case a “statutory trust” was created.

49. [188]

    There can be no doubt that the references to “public trusts” in each of the two paragraphs emphasised above must be read as references to charitable trusts recognised in equity. That is not only standard nomenclature, but it was deployed in circumstances where their Honours were distinguishing between charitable trusts recognised in equity and the “statutory trust” which would exist if the public purpose was not regarded as charitable. There is no other way of reading the distinction between those two classes of purpose, especially when regard is had to the footnote referring to the Charitable Trusts Act 1962 (WA).

50. [189]

    Parker J made two remarks at [197]-[198] concerning what was held in Rutledge:

51. [190]

    But neither of those considerations detracts from the propositions that Rutledge (a) confirmed that “dedicate” was the appropriate word to use for a charitable trust of Crown land, which thereafter ceased to be subject to governmental control, and (b) confirmed the outcome in Attorney General v Eagar that a charitable trust survived the dissolution of the Clergy and School Lands Corporation. Nor did it diminish the further significance of Attorney General v Eagar insofar as it was an important aspect of the context in which the Necropolis Act 1867 was enacted and the proclamations made.

52. [191]

    Parker J said of the parties’ reliance upon Ward at [220]-[221]:

53. [192]

    I respectfully agree with the entirety of those paragraphs, except for the second sentence of the first paragraph. Either Ward is determinative, or it powerfully supports the inference naturally drawn from the statutory language in the Necropolis Act 1867 and the proclamations made pursuant thereto. That is so notwithstanding the qualifications to which Parker J referred.

54. [193]

    Parker J noted, correctly, that it had not been necessary for the High Court in Ward to determine whether a charitable trust had been created. However, that does not prevent the careful reasoning in that section of the joint judgment’s reasons from being controlling. The passage reproduced above holds that insofar as s 33 of the Land Act 1933 (WA) authorised the vesting of land in a body for a purpose which was charitable in equity, then a charitable trust was created when land was vested in a body for such purpose; and insofar as s 33 authorised the vesting of land in a body for a purpose which was not charitable in equity, a statutory trust was created. That was an essential aspect of the reasoning that native title rights were extinguished.

55. [194]

    The discussion in Ward was closely attuned to the distinction between a statutory trust and a charitable trust. Indeed, that was the focus of the consideration of which public purposes authorised by s 33 were charitable purposes and which were not. As much is confirmed by footnote 386 referring to the Western Australian Charitable Trusts Act 1962, making it clear that their Honours were familiar with the fact that, as a matter of Western Australian statute, charitable purposes were broader than was the case in New South Wales.

56. [195]

    Parker J regarded Ward as distinguishable, because the facts and statutory context were different, and the point was one which the High Court had not needed to determine. Parker J was correct to proceed on the basis that it is necessary to read decisions contextually, and that even if the literal meaning of a proposition of law seemed to apply in a particular case, the proposition might nevertheless not apply because it was being taken out of context. All statements in all decisions, including those of the High Court of Australia, must be read in context. As the joint judgment stated in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 at [52], “The language of judgments should not ‘be applied literally to facts without further consideration of what is conveyed by the reasoning’ in the cases from which it is derived, or without regard to the text and scheme of the Act”; see also Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307; [2014] HCA 15 at [32] and Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 at [15]-[16]. One example may be seen in general language in Robinson v Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43] which if read literally applies the “glaringly improbable” deference required of an appellate court universally, even in a case wholly turning on documentary evidence, as opposed to cases where findings were likely to have been affected by impressions about witnesses’ credibility and reliability formed as a result of the trial judge seeing their evidence; this was pointed out in Springfield v Duncombe [2017] NSWCA 137 at [16]-[20] and clarified in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

57. [196]

    However, I would not place the same weight as did Parker J upon the matters relied on so as to distinguish Attorney General v Eagar, Rutledge and Ward. It is true that the first two concerned grants by deed, as opposed to charitable trusts created by statute. I favour the view that after the enactment of Sir John Robertson’s Land Acts in 1861 there would be a difficulty in granting the land to trustees to be held on charitable trust for the purposes of a burial ground. Either the land was to be sold at a fixed price, or else the land was to be dealt with in accordance with its particular provisions, such as dedication for the public purposes in s 5 of the Crown Lands Alienation Act 1861 and s 104 of the Crown Lands Act 1884 both of which included “interment of the dead”. A private grant would contradict the basic premise that Crown land was not to be disposed of other than in accordance with the Crown lands legislation, which Bryson J once said “should be regarded as a constitutional principle for New South Wales”: Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 at [5]. If that is right, it accords with what Mr Docker said in the Legislative Council in the passage reproduced at [35] above that “the bill was rendered necessary by the terms of the Crown Lands Alienation Act”. For those reasons, I doubt that any great weight should be given to the absence of a grant.

58. [197]

    Separately from the above, Attorney General v Eagar remains a very important decision, which contemporaneously confirmed the creation of a charitable trust in favour of religious and educational purposes at the time the Necropolis Act 1867 was passing through the New South Wales Parliament. Nor does it diminish the significance of the holding in Rutledge that “dedicate” – the verb used in s 1 of the Necropolis Act 1867 – was appropriate to describe a public charitable trust. Equally importantly, Ward was a decision on the effect of reserving Crown land pursuant to statute for a purpose which was a charitable purpose, and confirmed that where the statute did so permanently by a vesting of title, it created a charitable trust, even in circumstances where the statutory power could also vest Crown land for a public purpose which was not charitable.

59. [198]

    I respectfully disagree with Parker J’s reliance on the fact that it was unnecessary in Ward to determine whether the vesting of Crown land for a purpose which was charitable pursuant to s 33 of the Land Act 1933 (WA) created a charitable trust or a statutory trust. Although as Parker J correctly noted the choice would not have made a difference to the outcome of the case, the fact that a passage in the reasons was not necessary for the decision does not mean that it stands outside those pronunciations of rules or principles of law which bind. It means that the High Court had a choice to express a rule of law which was not necessary for its orders. The High Court chose to do so definitively. Where the High Court chooses to determine an unnecessary question of law, doing so in a considered fashion, then the proposition answers the description of “seriously considered dicta” to which what was said in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134] and Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21 at [25] applies.

60. [199]

    It is true that the question in Ward was of the construction of Western Australian legislation. But the New South Wales and Western Australian statutes were plainly cognate. It is obvious that the Colonial Office did not start afresh when it came to draft imperial legislation governing Crown land in Western Australia. And nothing changed when the local legislature addressed the subject. Ward noted at [165] that responsible government coincided with “control of the waste lands of the Crown in Western Australia pass[ing] from the Imperial authorities to the legislature of Western Australia”. Part III of the Land Act 1933 (WA) was headed “Reserves” and empowered the Governor to make reserves (s 29), to vest them in a municipality, road board, body corporate or named persons “in trust for the like or other public purposes” (s 33), and also to make “temporary reserves” (s 36), and it is strikingly similar to Pt III of the Land Act 1898 (WA), enacted after responsible government was introduced in that colony. All this resembles the system in New South Wales. So did the purposes for which land might be reserved in Western Australia, which included “for cemeteries” in s 29(i) of the 1933 Act and s 39(9) of the 1898 Act. What is more, the High Court when determining the Western Australian appeal in Ward regarded what had been said in the New South Wales appeal in Rutledge as relevant. Thus the reasoning of the High Court is not lightly to be distinguished on the basis that it addressed a provision of a Western Australian statute authorising reservation of land for charitable and non-charitable purposes, as opposed to a New South Wales statute.

61. [200]

    Two other themes in Parker J’s reasons concern the legislation regulating public parks and the power to make and disallow regulations and otherwise control the trustees. The Public Parks Act 1854 (18 Vic No 33), which was followed by statutes of 1884, 1902 and 1912, permitted the appointment of natural persons and, after 1884, local councils, as trustees of land dedicated “for the purpose of recreation convenience health and enjoyment” (s 1). The 1854 Act gave to the trustees “the powers of absolute owners (except for the purposes of alienation)” over the land (s 5). After 1884, s 6 deemed the trustees to hold the legal estate:

62. [201]

    There is no need for a full account of the legislation governing public parks. Ultimately, the Crown Lands and Other Acts (Reserves) Amendment Act 1974 (NSW) inserted into the Crown Lands Consolidation Act 1913 a new Part IIIB dealing with the management of land dedicated or reserved for public purposes.

63. [202]

    Parker J said at [226]-[228]:

64. [203]

    I respectfully place little weight on those comparisons. First, the model in the public parks legislation was departed from, in a critical way, by actually vesting title in the portions of land at Rookwood Necropolis in the trustees. There is to my mind real significance in thereby taking legal ownership of the land from the Crown, which did not occur in the case of public parks. There was good reason to do so, because the purpose of each burial ground involved the trustees selling what amounted to interests in land or something analogous to interests in land, and unquestionably contemplated the building of chapels and other structures on the land.

65. [204]

    Secondly, insofar as his Honour observed that there may have been concern following Attorney-General v Eagar, it is true that there was no separate grant of land, but it will also be noted that whereas the Clergy and School Lands Corporation was constituted by a charter which permitted its dissolution by Order in Council, the trustees and their successors in whom the legal estate of the portions of land at Rookwood Cemetery was vested were to hold that land “for ever”.

66. [205]

    Thirdly, it is true that the regulation-making power, which included a power to make regulations which created criminal offences, was governmental in nature, and was subject to executive oversight. But the fact that the trustees had additional statutory functions conferred upon them does not detract from the conclusion that there was created a trust recognised in equity, at least where those statutory functions are consistent with the performance of the trust.

67. [206]

    I now turn to some further contextual considerations.

68. [207]

    One of the complaints at a meeting to petition the Legislative Council on 21 July 1847 was addressed by the Bishop of Australia (the Archdeaconry had been constituted a Bishopric in 1836: see Wylde v Attorney-General (NSW) (1948) 78 CLR 224 at 236; [1948] HCA 39), who was reported in the Sydney Morning Herald the following day to have said:

69. [208]

    It was suggested that this would be “looked upon as one of the greatest blows at the independence of the Church that could be possibly proposed to the legislature”.

70. [209]

    Dr Murray explained in her PhD thesis at 83-84:

71. [210]

    Although it was permissible to erect a chapel, the Bishop of Australia was reported to have said that:

72. [211]

    Concerns such as these appear to have had a direct effect on the enactment of the Necropolis Act 1867. A lengthy account of the debate on the Necropolis Regulation Bill in the Legislative Assembly on 14 November 1867 is found on p 2 of the Sydney Morning Herald of 15 November 1867, occupying slightly less than an entire column under the heading “NECROPOLIS BILL – DEBATE CONTINUED”, which was provided in the materials made available to this Court. When seeking to locate where the second reading speech commenced, I found p 4 of the same newspaper on the same date, which includes a short entry which evidently preceded what had been reported two pages earlier:

73. [212]

    Further light is shed upon this by reference to what is reported by the Sydney Morning Herald on Friday 2 August 1867, p 2:

74. [213]

    Sir William Manning then proposed that the bill be delayed until a response had been made to the letter and Mr Docker confirmed that he had not seen the letter.

75. [214]

    Thus there is nothing in the extrinsic materials to suggest that the Legislature was departing from what had been recently established in Attorney General v Eagar that the effect of vesting Crown land in trustees for a charitable purpose was to create a charitable trust. Further, the Church of England was continuing, until mid 1867, to insist on clear powers being given to trustees. Putting together the absence of any appointment of Church of England trustees when all other denominations and the trustees of the “general” portion were appointed with what was said in Parliament in August 1867 and when the Necropolis Regulation Bill was introduced in November 1867, it is clear that the reason the Necropolis Regulation Bill was introduced at the end of 1867 and the earlier notifications superseded by dedications and setting apart of land under that bespoke measure was the insistence of the Church of England for a greater level of formality.

76. [215]

    It is unnecessary for present purposes to express any views on the genuineness of the statements that the Church of England was willing to participate in the interdenominational Necropolis, a concept which that church seems to have opposed for some two decades. But one can safely conclude that the reason that bespoke legislation was introduced in late 1867, which became the Necropolis Act 1867, was the insistence that the creation of the cemetery not take place under the ordinary processes of dealing with Crown land. What was sought was legal title to the portion of the land and to the extent possible an entitlement to operate outside the control of the executive government of the colony.

77. [216]

    I conclude that the steps taken in 1867 and 1868 created a charitable trust. Textually, the fact that the land was “dedicated” was the apt word to deploy if the steps to be taken under statute were to have that effect. The purpose is obviously charitable, and the legislation uses, repeatedly, the technical language of equity consistently with its creating a trust recognised in equity: “trustee”, “vest” and “legal estate”. The fact that the legislation provides that the trustees and their successors will hold the land for the trust and purpose specified “for ever” is also, to my mind, powerfully suggestive of the statute engaging a charitable trust recognised by equity, rather than creating trust-like obligations whose survival depends on the continuing existence of the statute. Moreover, the context includes the recent decision on the Clergy and School Lands Corporation, which created a charitable trust, and there is nothing to suggest any attempt to depart from the result achieved in Attorney-General v Eagar. The immediate reason for bespoke legislation, rather than a process under the Crown lands legislation, was resistance from the Church of England and insistence on greater formality, and that tends also to suggest a charitable trust. Finally, the textual and contextual considerations favouring a charitable trust are far more striking than those in Ward which were found to have created a charitable trust.

78. [217]

    Some additional 132 acres became subject to the same charitable trust in 1893. Although the original dedication was under the Crown Lands Act 1884, which fell short of vesting title in the trustees, by 1893 that had occurred under the Necropolis (Amendment Areas) Act 1893, and the same statute made it plain that the additional land was held on the same terms. The further variations throughout the 20th century did not alter the nature of the trust, nor did the enactment of the Necropolis Act 1901 (although I shall return below to the parties’ submissions concerning whether that statute altered the charitable purpose).

79. [218]

    My conclusions turn in part upon what I regard as the important aspects of Attorney-General v Eagar, Rutledge and Ward, and in part upon aspects of the context. In fairness, it seems that many or most of those considerations had not been advanced in argument to Parker J.

Second issue: the effect of the repeal of the later legislation

1. [219]

   It is necessary to give separate attention to (a) the Necropolis Act 1901, (b) the amending legislation in 2004 and 2009 which repealed the Necropolis Act 1901, and (c) the Cemeteries and Crematoria Act 2013, although his Honour placed greatest weight on the 2004 and 2009 statutes.

2. [220]

   The principal importance of the Necropolis Act 1901 was the variation in the wording of the purpose for which the land was held, which is the fourth issue and is addressed below. Parker J also regarded this variation as presenting a potential difficulty for the plaintiff which contended on the one hand that there was a charitable trust, but on the other hand that s 12 altered the charitable purpose. His Honour said at [250]:

3. [221]

   It will be seen that on the view I take, this potential difficulty does not arise. But I would add that there is no obstacle in statute amending the charitable purpose of a trust. I respectfully do not accept that it is “fundamental” that the terms of a trust are fixed at its inception. Trusts are a flexible institution, and it all depends on how the trust is constituted. It is rare to see a private discretionary trust that does not include a power of variation. Statutes have long conferred powers on courts to vary trusts – the power of advancement in s 44 of the Trustee Act 1925 (NSW) is a familiar example, and a broader power has more recently been conferred by s 86A. Turning more specifically to charitable trusts, the point of a cy-près scheme is to alter an existing charitable purpose. I see no reason in principle why a statute cannot alter the purpose of a charitable trust already in existence in equity. An example of a statute treating an altered purpose as a charitable trust is, in fact, s 8(3) inserted by the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Act 2006 (NSW), which provides that if certain changes took place, then “any trust fund that was originally established for the purposes referred to in subsection (1)(a) … continues to be a valid charitable trust”.

4. [222]

   Parker J regarded the subjection of the land at Rookwood Cemetery to the powers conferred under the Crown lands legislation as significant when coupled with the repeal of s 12 of the Necropolis Act 1901, saying of this at [261]-[262]:

5. [223]

   There are two aspects to what flows from the repeal of s 12. One is that it seems that the parties advanced submissions before Parker J that the power of the Crown Lands Act Minister to deal with the land at Rookwood was confined by s 12, leading to a difficulty when s 12 was abolished. Ultimately it was on this basis that Parker J regarded the omission of s 12 in the amending legislation of 2004 as decisive.

6. [224]

   But that argument proceeds on a false basis. As was emphasised in the parties’ submissions in this Court, the existence of a power to alter or extinguish a trust is quite different from its exercise. Private trusts not uncommonly include powers to bring the trust to an end, or to vary its terms, often conferred upon an “appointor”. Such trusts continue in existence, unvaried, until and unless the power is exercised (or the trust vests by operation of law). In the modern regulated world, land held on trust may become subject to the exercise of powers of the Executive and government agencies (local government may require plans of management, heritage land may be protected, and so on) thereby imposing obligations on a trustee or circumscribing the trustee’s power to use trust assets to carry out a charitable purpose. The regulators of charities may insist upon disclosure of information concerning those controlling the trust assets, and the publication of financial information: see for example Part 3.2 of the Australian Charities and Not-for-profits Commission Act 2012 (Cth). In short, the susceptibility of the rights, obligations, powers, privileges and immunities constituting the trust to such a power does not mean that the trust comes to an end. There is no occasion to speculate whether and if so the extent to which s 12 circumscribed the Minister administering the Crown lands legislation to exercise powers such as the power to rededicate the land at Rookwood. There is no suggestion that any such power was exercised.

7. [225]

   The second aspect to the repeal of s 12 is that if there were merely a statutory trust, such that the sole source of the obligation that the land be held for the purpose stated in s 12 was that section, then that obligation cannot survive the repeal of the section. But my conclusion that the dedication and setting apart and vesting in trustees in 1868 and 1889 created a trust recognised in equity carries with it the consequences that neither is the continuation of s 12 on the statute books necessary for the charitable trust to continue, nor does the repeal of s 12 extinguish the trust. That conclusion accords with the stated purpose of the Rookwood Necropolis Amendment Act 2004, namely, to remove provisions which had “fallen into disuse”, and is therefore favoured by s 33 of the Interpretation Act.

8. [226]

   Section 30(1)(c) of the Interpretation Act provides that “any right, privilege, obligation or liability” which has been “acquired, accrued or incurred” is unaffected by a repeal. Parker J said at [273] that “this provision preserves rights and obligations, not institutions. At most, if a trust had subsisted and there had been accrued rights or liabilities of the Trustees (for instance, a right of indemnity) then those specific rights and liabilities would have been preserved. The enactment would not have continued the trust itself.” The plaintiffs before this Court were critical of this, and there is some force in their criticism. I agree with them that there is no valid distinction between the rights, privileges, obligations or liabilities involved in the trust relationship and the trust as an “institution”. A charitable trust is nothing more nor less than the bundle of rights, privileges, obligations and liabilities between the trustee and the trust property in respect of the charitable purpose.

9. [227]

   But s 30(1)(c) does not preserve all rights, privileges, obligations and liabilities. As Parker J also stated, s 30(1)(c) only applies to rights, privileges, obligations and liabilities which are “acquired, accrued or incurred” under the repealed Act. It is true that it is awkward, to say the least, to regard a right of indemnity for liabilities not yet incurred to fall within s 30(1)(c). But it is also necessary to have regard to s 30(1)(b) which provides that the repeal of an Act does not affect the previous operation of the Act or “anything duly suffered, done or commenced under the Act”. A charitable trust was created by the exercise of powers under the Necropolis Act 1867 vesting the legal estate of land in trustees to hold it for a specified purpose. The vesting of legal title in the trustees, as opposed to Queen Victoria, thereby creating a trust recognised in equity answers the description of something “done” under the Act.

10. [228]

    True it is that there was a deemed dedication of the land under the Crown lands legislation, as noted in cl 54 of Sch 8 of the Crown Lands Act 1989 inserted by the Rookwood Necropolis Repeal Act 2009. But that statutory fiction does not alter the vesting which actually occurred in 1868 and 1893. I incline to the view that cl 54(2) which provided that the repeal of the Necropolis Act 1901 “does not affect any vesting of land that, before the appointed day, had been effected under s 11 of that Act” does not apply. Section 11 spoke to every “separate portion of land hereafter set apart”, and the land the subject of this litigation was vested in the trustees in 1868 and 1893. But the fact that cl 54(2) seems not to deal explicitly with the vesting of land in the trustees does not detract from the fact that cl 54(1) confirms the dedication and the appointment of the reserve trust. There is nothing in the legislation in 2004 or 2009 to suggest that it did.

11. [229]

    Finally, Parker J addressed the possibility that the trust might have survived the repeal of the entirety of the Necropolis Act 1901, saying at [277] that the reorganisation undertaken by the Minister in April 2012 “clearly proceeded on the assumption that the Cemetery was regulated by the Crown Lands Act and nothing else” and that “it clearly must have been intended by Parliament that the regulatory regime established by the Cemeteries and Crematoria Act 2013 would apply to the Rookwood Cemetery”, with the result that “[h]ad a trust survived to that point, it probably would have been abolished by necessary intendment because of its inconsistency with the system of regulation established by the 2013 Act”. The 2012 reorganisation affected the other portions of land, but not the Catholic portion, and may be disregarded, but it remains necessary to address the effect of the Cemeteries and Crematoria Act 2013 upon the charitable trust subject to which that land was held.

12. [230]

    Unquestionably the trustee was subject to the regulatory regime established by the Cemeteries and Crematoria Act 2013. But that is not antithetical to the existence of a charitable trust. The Codes of Practice which may become mandatory practice requirements pursuant to Divs 2 and 3 of Pt 3 are consistent with a trust, as is the susceptibility of the trustee to incurring the obligations occasioned by service of an “improvement notice” or “short term order” pursuant to Divs 4 and 5, and the reporting obligations imposed by Div 7. The same may be said of the regulation of interment rights, the appointment of managers and the making of draft plans of management, and the investigation powers conferred on the regulator.

13. [231]

    I conclude that the charitable trust of the Catholic portion of Rookwood Cemetery continued in existence notwithstanding the legislation enacted between 1901 and 2013.

Third issue: the effect of the Crown Land Management Act 2016

1. [232]

   This litigation has been conducted the basis that the “Other Financial Assets” which are the subject of this litigation are the proceeds of the activities of the plaintiffs and their predecessors in respect of the land. Attorney-General (Qld); Ex rel Nye v Cathedral Church of Brisbane (1977) 136 CLR 353; [1977] HCA 15 held that the product of the use of trust property may also be held as property of the trust, as was observed in University of New South Wales International House Ltd v University of New South Wales [2016] NSWSC 1709 at [64] and Harmony – The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales [2020] NSWSC 1276 at [67]. I see no reason to doubt the correctness of that conclusion in its application to the present facts, noting that the financial statements record that the Other Financial Assets have the purpose of generating returns to satisfy future obligations of the trustees by way of maintenance. It can scarcely have been the case that the trustees were at liberty to devote proceeds from the operation of the charitable trust to other purposes.

2. [233]

   The parties correctly proceeded on the basis that cl 11(2A) of Sch 7 will cause the trust over the land in the Roman Catholic portion of Rookwood Cemetery to be abolished on 29 February 2024. That is the plain meaning of the provision.

3. [234]

   It is fair to say that neither party made detailed submissions on whether cl 11(2A) would abolish the entirety of the charitable trust, or will merely do so to the extent that it applied to land. The plaintiffs’ submissions were confined to two paragraphs; those of the Attorney to a single paragraph.

4. [235]

   Both the plaintiffs and the Attorney submitted that the effect of cl 11(2A) is that it will abolish the charitable trust insofar as it applies to land, but will leave in place the charitable trust in respect of the non-land assets, which is to say, the approximately $160 million in “Other Financial Assets”, which assets continue to be subject to the same charitable trust. That is said to be the consequence of the preservation of existing trusts in s 1.10 together with the limited abolition of the trust in cl 11(2A) insofar as it applies to trust land, coupled with the presumption that legislation does not interfere with rights of property. I would give little weight to the latter presumption. The point of the new regime is to abolish the corporations which formerly were reserve trusts and to abolish the trusts over reserves of which reserve trusts were formerly the trustees. That is not a propitious starting point for an implication that there is a non-interference with property rights. The point was made by Gageler and Keane JJ in Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [314]:

5. [236]

   In short, the question is one of construction, rather than presumption.

6. [237]

   The plaintiffs asserted that cl 11(2A) “does not affect trust property that is not land”. That is less than self-evident; cl 11(2A) abolishes “Any trust over the trust land” of, relevantly, CMCT. Unquestionably the provision extinguishes at least some of the rights, obligations, powers, privileges and immunities that constitute the trust relationship. One way of construing the provision is that it extinguishes the trust relationship pro tanto, only insofar as it applies to CMCT’s trust land. Another way of construing the provision is that where there is a trust which extends to CMCT’s trust land, that trust in its entirety is extinguished. Although “extinguish” is a slightly awkward verb to use to describe the bringing to an end of the trust relationship, both meanings are available as a matter of language.

7. [238]

   Nor does it advance the analysis to observe that (a) pursuant to cl 11(5)(b) the assets of CMCT are transferred to CCB, (b) pursuant to cl 11(7) Sch 6 applies to the transfer, and (c) pursuant to cl 3(1)(c) of Sch 1 the transferee has all the entitlements and obligations of the transferor in relation to the transferred assets; with the consequence that “any trust of the Catholic Cemetery Proceeds survives the abolition of CMCT on 29 February 2024 and will continue to attach to those proceeds in the hands of CCB from 29 February 2024”. The first three steps in the submission are correct, but the consequence for which the plaintiffs contend does not follow. The conclusion is premised upon the abolishing effect of cl 11(2A) being confined to the trust insofar as it extends to trust land, and not extending to trust assets other than trust land.

8. [239]

   Perhaps it was with those possibilities in mind that the Attorney-General’s submission was more equivocal: “The better view is that cl 11(2A) does what it says and no more: that is, it is only the ‘trust over the trust land’ that is abolished”.

9. [240]

   Nonetheless, I have concluded that the construction for which all parties contend is to be accepted. Clear language has been used to address the abolition of a trust over the land of a former reserve trust, and there is silence in respect of trust assets which are not land, save for the general transfer of those assets to the relevant transferee.

10. [241]

    The purpose of the Crown Land Management Act 2016 is to regulate Crown land, as opposed to personalty, even if that personalty may have been derived from the use of Crown land. There is nothing in the statute or the extrinsic materials or the context to suggest that the legislation had any effect (or will have any effect) on extant charitable trusts of personalty. As Parker J observed at [300], there is a legislative gap. The better view is that the result of that legislative gap is that the charitable trust continues in respect of personalty. That conclusion does not turn on any aspect of Mayor of Lyons v Advocate-General of Bengal.

11. [242]

    I am conscious that the accumulated “Other Financial Assets” are evidently in the nature of capital as opposed to revenue and reflect historical use of the trust land, including from the sale of interment rights which have been regulated from 1867. But there is nothing in the transitional provisions resembling s 64 of the Conveyancing and Law of Property Act 1898 (NSW) whereby “Capital money arising under this part while remaining uninvested or unapplied, and securities on which an investment of any such capital money is made shall, for all purposes of disposition, transmission, and devolution be considered as land”, nor does anything in the scheme of the Crown Land Management Act 2016 resemble the issues which arise when, as Romer J put it in Re Scholfield’s Will’s Trusts [1949] Ch 341 at 346, “money has, through wholly fortuitous circumstances, been substituted for an interest in property”. Thus I see no sound basis to construe “Any trust over the trust land” to include “Any trust over the trust land, including any trust over personalty representing the proceeds of the authorised use of trust land”.

12. [243]

    Accordingly, I conclude that the proceeds will, from 29 February 2024, continue to be held on the same charitable trust as the Rookwood land and proceeds have been held on up to that date.

Fourth issue: the terms of the charitable trust

1. [244]

   I have hitherto deferred dealing with the parties’ submissions on the effect of the change in language effected by the Necropolis Act 1901.

2. [245]

   The plaintiffs submitted that the altered wording in the Necropolis Act 1901 amounted to a broader purpose, which was reflected in other provisions of the 1901 Act. They submitted:

3. [246]

   The plaintiffs then submitted that s 12 of the Necropolis Act 1901 was to be read accordingly. Section 12 provided, with the emphasis given to it by the plaintiffs:

4. [247]

   The plaintiffs emphasised that no longer was there stated to be a restriction to the burying of the dead of the particular denomination.

5. [248]

   Because the existing trustees were deemed to have been appointed under the Necropolis Act 1901, s 12 applied to the land set aside for a Roman Catholic cemetery. The plaintiffs submitted that it “had the effect of subjecting that land to ‘the trusts and purposes ... of this Act’”. They said that “[a]lthough s 12 refers to trustees having land vested in them and holding land ‘for a burial ground for burying the dead’, the provisions of the 1901 Act outlined above indicate that the ‘trusts and purposes ... of this Act’ were the use of land by the relevant denomination as a burial ground for burying the dead” (plaintiffs’ emphasis).

6. [249]

   The plaintiffs submitted that:

7. [250]

   The Attorney disagreed, submitting that the purpose of the charitable trust did not thereby change, and making the following contentions:

   1. (1)

      the generic phrase “for a burial ground for burying the dead” naturally described the denominational and non-denominational burial grounds at the cemetery;

   2. (2)

      section 7 expressly continued the existing dedications, and by referring to the lands “continu[ing] to be so dedicated” and “so set apart” in s 7(1) and (2) and (3) the restrictions on the use of the land effected by the dedications and settings apart continued;

   3. (3)

      section 12 referred to “the” trusts and “the” purposes, which pointed to definite trusts and purposes, defined in the proclamations;

   4. (4)

      the phrase “burial ground for the use of [a] denomination” bore the same meaning as the wordier phrases that appeared in the 1867 and 1893 Acts;

   5. (5)

      the purpose supported this construction, as “there is no obvious rationale for Parliament establishing a general cemetery with separate, denominational burial grounds where the dead were, nevertheless, to be buried on an interdenominational basis”, and

   6. (6)

      the Attorney relied on the certification by the Commissioner for the Consolidation of the Statute Law that “this Bill solely consolidates, and in no way alters, adds to, or amends the law as contained in the Statute therein consolidated”.

8. [251]

   The principal point made by the plaintiffs in reply was that the continuation by s 7 of the dedications made by the proclamations in 1868 and 1889 was not to the point, because that conflated the dedication of the whole of the Rookwood land with the setting apart of the portions to be vested in trustees on separate and more specific trusts. The plaintiffs also took issue with the proposition that the change in purpose was at odds with the legislative history. They said “the key point which emerges from that history is the insistence of certain denominations that each denomination have its own separate burial ground with legal title thereto. The changed purpose for which the plaintiffs contend is consistent with that history”. They sought to diminish the effect of the Commissioner’s certificate which stated that the Necropolis Act 1901 did not alter or amend the law, saying that that could not control the meaning of the new language. They added that “If anything, the fact that the 1901 Act is a consolidating statute suggests it should be construed according to its own terms and not by reading into it language used in earlier, repealed legislation”.

9. [252]

   I think the construction propounded by the Attorney is correct. Without criticising the ingenuity that has been devoted to the submissions on construction from both sides, I think the position is straightforward.

10. [253]

    The starting point is the long title of the Necropolis Act 1901, which is “An Act to consolidate the Acts relating to the establishment and regulation of the Necropolis”. That is confirmed by the Commissioner’s certificate that the Bill “solely consolidates, and in no way alters, adds to, or amends the law”. On its face, it is unlikely that the consolidating statute altered the charitable purpose in the way the plaintiffs contend.

11. [254]

    True it is that the language changed. But the ordinary principle that a change in language entails a change in legal meaning does not apply to consolidating legislation: that is the point of the statute being consolidating, which merely expresses more clearly a regime which is unchanged in substance.

12. [255]

    Further, there is an evident explanation for the shift in language. The consolidator was seeking to simplify the legislation. That could be done by using the same language to describe the purpose of both the denominational and the general portions of the cemetery. To do so it was necessary to omit the words “burying the dead of such denomination”, because those words were inapplicable to the general portion.

13. [256]

    If textual confirmation of the above were needed, it may be supplied by observing other language in the statute, notably in ss 7 and 12 referring to “the” existing dedication and settings apart, and “the” trusts and purposes. Those references are impossible to reconcile with a change in the purpose of the charitable trust.

14. [257]

    Finally, everything that I have learned in the course of preparing this judgment in connection with the history of Rookwood Cemetery, and cemeteries in colonial New South Wales more generally, points to this being an area where very strong views were held by persons who were more than willing to express them forcefully. I see no basis for construing the consolidating statute such that a very significant change in the charitable purpose was effected without any indication that that was occurring.

Conclusion and orders

1. [258]

   For those reasons, declarations in the form sought by the Attorney General should be made. Neither side sought costs. Accordingly, I propose the following declarations be made: